Gregory Rose724
Recent Australian efforts at integrated marine management provide a case study in governance for sustainability. Sustainability requires management with a view across borders, sectors and time.
In 1998 the Australian government adopted its comprehensive Oceans Policy. An objective of the policy was to ensure ecosystem-based management in Australia's and marine realm, based upon a whole-of-government approach to integrated planning for multiple uses of marine regions. An administrative agency, the National Oceans Office, was established and made accountable to a National Oceans Ministerial Board of five ministers with responsibilities across marine resources sectors. Slow progress was made in commencing the regional planning part of the Oceans Policy and only one marine regional plan was adopted, for South Eastern Australia, in 2004. The marine regional planning process was then substantially abandoned.
Instead, a process of bioregional planning was adopted in 2005. This narrowing of the scope of the planning process, in favour of a biodiversity-focused planning approach, reflected lessons learned from the fraught experience in holistic marine regional planning. In contrast to the policy-based marine regional planning process, the bioregional planning process is supported by a legislative mandate. Again, in contrast to the Ministerial Board, bioregional planning occurs under the sole authority of the Minister for Environment. It is supported by the more muscular Department of Environment, into which the National Oceans Office has been merged.
This case study argues that lessons learned from the implementation of Australia's Oceans Policy include an appreciation of the necessity of a clear mandate, with a legislative basis, to support governance for sustainability. In addition, administrative arrangements need to utilise the capabilities and resources of existing agencies, either by delegating to them a particular responsibility for cross-sectoral liaison concerning specified subject matter, or by locating that broad responsibility for cross-sectoral liaison within a capable and well resourced administrative agency. These two elements provide the institutional foundations to give effect to the integrated planning and management process.
The marine environment poses specific challenges to governance for sustainability that make it problematic for managers. There are at least three exceptional marine challenges: first, there is usually limited access to expert technical advice, due to a plain lack of available scientific information concerning the particular marine ecosystem to be regulated, e.g. its geomorphology, the dynamics of its currents, chemistry and temperatures, the biological relationships of endemic and migratory species, or even the prevailing patterns of human use and exploitation. Second, regulatory authority for marine ecosystems is typically fragmented geographically between jurisdictions that each controls a piece of the marine pie (horizontal fragmentation). Third, regulatory authority is also fragmented vertically between activity regulators that administer the different sectoral uses of the same space, such as for shipping and waste discharges, that have significant intensity and impact upon each other through multiple relationships (vertical fragmentation). This case study focuses upon integrating management across different sectoral uses that require that the various, sometimes competing, authorities to cooperate with each other to manage the ecosystem as a whole. For example, marine species conservation cannot be managed without addressing cross-jurisdictional migrations and habitat influences, and also addressing impacts of commercial fisheries, recreational fisheries, port management, waste discharges and ship-based marine pollution.
The Australian government responded to the challenge of integrated marine management by initiating a national consultative and negotiation process that culminated at the end of 1998, the international Year of the Oceans, with the adoption of Australia's Oceans Policy (AOP).725 It establishes a framework for integrated ecosystem-based planning and management for all of Australia's marine jurisdictions726 that aims to promote ecologically sustainable development of marine resources in a way that both encourages industry and protects biological diversity. Its implementation has met many obstacles that left it floundering and resulted in reconceptualisation of central implementation mechanisms.
This case study examines Australia's experience with the concept, design and implementation of the AOP and reflects back on what this might tell us about designing governance for sustainability. As Thomas Edison is famously said to have observed concerning his multiple failed attempts to construct an incandescent light bulb: ‘I have not failed. I've just found 586 ways that won't work’. Similarly, the history of the AOP offers almost as many lessons relevant to marine governance for sustainability.
Many littoral countries experience horizontally fragmented jurisdiction in their power to control marine affairs. For example, Canada and the USA divide littoral jurisdiction geographically between their federal and provincial/state governments. In the United Kingdom, jurisdiction is divided between the Kingdom and the constituent countries. In Indonesia and the Philippines, littoral jurisdiction is divided into three coastal rings of control, respectively held by the national government, regencies/provinces and local municipalities. In Australia, in 1975, the High Court disrupted earlier assumptions concerning the geographical division of coastal jurisdiction by holding that the Commonwealth alone, i.e. federal government, is sovereign over all coastal waters, including the seabed, as far inshore as the low water mark.727 Following this decision, the Commonwealth and the States negotiated the Offshore Constitutional Settlement, which re-established the previously assumed jurisdictional boundaries between Commonwealth and State marine areas. In general, the States maintain responsibility for waters up to three nautical miles from the coastline, now termed the ‘coastal waters’.
Australia's Oceans Policy was initially intended to embrace all marine jurisdictions, inclusive of the Commonwealth, States and the Northern Territory. However, negotiations between the governments broke down,728 apparently because the States considered that any policy that required them to coordinate regulatory authority over their own State coastal waters would surrender again those crown controls they had won back under the Offshore Constitutional Settlement. Consequently, the AOP was adopted only by the Commonwealth government and it is not a national policy of all Australian governments. Only if Commonwealth, State and Territory coordination emerges independently through joint inter-governmental ministerial arrangements can coordinated cross-jurisdictional management of Commonwealth, State and Territory coastal waters be achieved.729 Thus, the AOP applies only to Commonwealth waters, i.e. the maritime domain commencing from the outer edge of the coastal waters, 3 n.m. offshore, and extending outwards to the edge of the exclusive economic zone 200 n.m. offshore.
For Commonwealth waters, the AOP seeks to establish integrated marine governance. The AOP established the National Oceans Ministerial Board (NOMB), comprising the five federal Ministers responsible for environment, fisheries, industry, transport and science, as the highest mechanism within the Commonwealth Government empowered to negotiate cross-sectoral marine management cooperation.730 The National Oceans Office (NOO) was established to act as secretariat to the NOMB.731 NOO was designated as a small, free-standing executive agency, accountable across ministries, and was located in Hobart, Tasmania, somewhat remote from the seat of federal government in Canberra.
At the regional level, the AOP utilised ‘regional marine planning’ as the primary way forward to cross-sectoral cooperation. The regional marine plans were to integrate sectoral commercial interests and conservation requirements and to bind Commonwealth agencies. The regions to be planned were to be based on five large marine ecosystems, identified through a national system for Australian marine and coastal regionalisation that was developed in time for the adoption of the AOP in 1998.732
The first region designated for planning was offshore of south-eastern Australia. Following a scoping phase in 2000–2001 and an assessment phase in 2001–2002, consultations took place in 2002–2003 to negotiate the contents of the plan. That marine region is the nation's most intensely used and, if coastal waters were coordinated, would overlap the most jurisdictions (five). Its planning commenced with a series of scientific, socio-economic and legal studies intended to consolidate the regional knowledge base. It continued with a series of stakeholder consultations.
The South East Regional Marine Plan was finalised and launched in May 2004.733 Unfortunately, the final Plan did not meet Commonwealth Government or stakeholder expectations. A major reason was its focus on governance principles rather than on prescriptions for spatial uses. The adopted plan had no statutory status or legislative footing but was entirely based in policy instruments. From a marine conservation perspective, in particular, it failed to conclude an agreed ‘comprehensive, adequate and representative’ system of marine protected areas as part of the originally intended package of regional measures. Nevertheless, in July 2007, three years later, 13 new marine protected areas for the South East region, comprising the largest temperate water MPA network in the world (all in Commonwealth waters) were declared under statutory authority.734
A new Commonwealth approach to regional marine planning, announced in October 2005,735 indicated that the plans would henceforth have a legislative basis in the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), Section 176. It provides for the adoption and effect of ‘Bioregional Plans’ within a Commonwealth area:
176(1) The Minister may prepare a bioregional plan for a bioregion that is within a Commonwealth area. In preparing the plan, the Minister must carry out public consultation on a draft of the plan in accordance with the regulations.736
176(2) The Minster may on behalf of the Commonwealth cooperate with a State or self-governing Territory, or any other person in the preparation of a bioregional plan for a bioregion that is not wholly within a Commonwealth area.
176(3) The cooperation may include giving financial or other assistance. ...
176(5) Subject to the Act, the Minister must have regard to a bioregional plan in making any decision under this Act to which the plan is relevant.
Although regional marine planning under the EPBC Act formally became a process confined to Commonwealth waters, a plan may extend into State or Northern Territory coastal waters if the latter cooperate, most likely as a result of Commonwealth financial inducements. The major significance of a bioregional plan under section 176 is that it imposes a legal obligation upon the Minister administering the EPBC Act to take the plan into account when making any decision in relation to which the plan is relevant. A failure to do so would result in the decision being open to challenge and judicial review for procedural error. The Minister has a wide range of decision-making responsibilities under the EPBC Act. These include consideration of environmental approvals, disapprovals or conditions that can be imposed on proposed developments that affect Commonwealth waters or others matters of ‘national environmental significance’.737
As compared to marine regional plans, the section 176 bioregional plans refocus the marine planning process and outcomes on matters of environmental relevance. In particular, the bioregional plans will provide for the conservation of marine biodiversity, by means of the National Representative System of Marine Protected Areas. The contents of bioregional plans are largely anticipated in section 176, which provides that:
176(4) A bioregional plan may include provisions on all or any of the following:
The components of biodiversity, their distribution and conservation status;
Important economic and social values;
Objectives relating to biodiversity and other values;
Priorities strategies and actions to achieve the objectives;
Mechanisms for community involvement in implementing the plan; and
Measures for monitoring and reviewing the plan.
Thus, bioregional plans will contain three components: (1) a profile of the marine region (including key conservation values, socio-economic context and threats to ecological sustainability); (2) an integrated conservation strategy (including risk-based priority actions); and (3) reporting and review requirements.
Consequent upon the shifts from a policy to a legislative basis and from holistic to bioregional planning, two institutional changes were made in federal marine governance. The National Oceans Ministerial Board was dissolved (in May 2006), in favour of flexible federal cabinet committee consultations, and the National Oceans Office was made responsible exclusively to the Minister for the Environment, rather than being responsible to five ministers across sectors, as it was initially.
In effect, the use of EPBC bioregional plans makes regional marine plans, the central feature of the AOP, redundant. Indeed, the 2004 South East Regional Marine Plan will need to be revised in order to give it the significance of a s 176 bioregional plan. With the transformation from regional marine planning to bioregional planning, the goal of the planning process was reduced from fully whole-of-government central planning to the far more modest goals of developing a plan that the Minister for Environment must consider, and providing information products in the form of regional biodiversity profiles for consideration by other agencies with a view to their independent consideration of sustainable marine development.
In circumstances where it is desired to govern an ecosystem that stretches across geographically defined boundaries that are administered by two or more jurisdictions with substantial autonomy, incentives for cross-jurisdictional coordination are essential. These incentives include common self interests, which may be apparent from the start of the coordination process or artificially introduced in the form of incentives, such as financial grants or access to resources, or disincentives to non-coordination, such as denial of such privileges. It might have been predicted that the AOP would not successfully introduce cross-jurisdictional coordination as there was no apparent self-interest for the States and Northern Territory to coordinate with the Commonwealth or each other. Unfortunately, the Commonwealth declined to introduce incentives or disincentives that might have positively influenced State and Northern Territory perceptions of their interests in cross-jurisdictional coordination.
In relation to integrating marine governance across sectors at the Commonwealth level, the AOP has been a partial success. The quiet abandonment in 2005 of centrally and fully integrated cross-sectoral marine planning, in favour of bioregional planning, was an Australian marine governance watershed. The failure of holistic, cross-sectoral marine institutional cooperation might be attributed to the AOP's lack of requisite mechanisms for implementation, including statutory authorities and operational linkages to existing management frameworks that would provide authority, clarity and enforceability. The succeeding approach focuses more narrowly on the integration of biodiversity conservation into regional marine governance. It is supported by statutory authority and a capable government agency.
Concerning statutory authorities, it is critical that the rules are known and accepted by all the players. Sectoral agencies and governments, each with their own established stakeholders and bureaucratic resources, are players seeking to score their independent goals. Mere policy is not enough to establish respected game rules because individual government portfolios are each responsible for their own sectoral policies, often competing with equal authority with policies of other sectors and the policies of the umpire. Respected game rules provide conditions of play more conducive to ‘cross-sectoral governance’, whereby mid-level governmental officials build cooperative working relationships across portfolios in order to achieve sustainable, mutually acceptable outcomes.738 Thus, a lesson from the Australian experience is that cross-sectoral cooperation needs to be supported by clear, common recognition of the imperative of whole-of-government cooperation, such as is usually mandated through legislation. Of course, such laws and procedures need to be explicit and clear to be effective.739 In the event of a breach or of conflicting interpretations or rules, an appeal to a judicial umpire can then correct unfair play. Laws enacted directly by Parliament also provide a greater likelihood of external legal accountability for their breach.
Concerning institutional arrangements, the Australian experience suggests that cross-sectoral coordination processes, which are in reality power games engaged in by proponents of competing interests, cannot be vested in a central institution. The effort to locate the management of cross-sectoral issues in one executive agency without a legal or an established political power base was perhaps over-ambitious for a fledgling process and its infant institution. Its attempt to integrate management was perceived as ‘threatening’ by some stakeholders and as encroaching on the responsibilities of some governmental institutions. Thus, planning and management for sustainable development might need to be based on dialogue and networks that operate primarily at the intermediate level of bureaucracy and should be conducted through mainstreaming within and consultations between multiple agencies. The location of responsibility for marine resources management liaison arrangements might vary with the subject matter, with various line agencies having responsibilities for different subject matters.
However, the conclusion that a centralised process and agency can never successfully perform an integrated marine governance planning or management function is premature and too simplistic. For example, where the main issues managed by a governmental agency are cross-sectoral in nature, cross-sectoral liaison responsibility might be successfully entrusted to it. This is the modus operandi of foreign affairs ministries and it is also possible for integrated marine governance because the main ocean resources issues are cross-sectoral. Thus, the difficulties that confounded centralised integrated cross-sectoral oceans management in Australia might have a range of other reasons, including a weak mandate and the lack of a well resourced agency located in Canberra.
Australia's experience with its Oceans Policy provides a case study in cross-sectoral integration of natural resources management premised on ecosystem sustainability. Australian integrated marine management eventually narrowed in scope in its transition from whole-of-government multiple-use regional marine planning to bioregional planning. The case study demonstrates some difficulties in establishing a mandate and operational mechanism for broadly conceived cross-sectoral governance for sustainability. It also provides some lessons about how to construct successful mandates and mechanisms.
The abandoned broad-scope regional marine planning process was a learning experience. It demonstrated the value of the substantial information it produced through its marine regional profiles and its linkage of marine information databases. In addition, liaison between an extended set of marine agencies generated knowledge about their respective interests and produced enduring linkages between bureaucrats across sectors that continue to facilitate cross-sectoral cooperation. Similarly, liaison with external stakeholders generated knowledge, linkages and functional consultation processes that facilitate inclusive, participatory decision-making.
The absence of a legislative mandate for broad-scope integrated marine management was problematic. If the Commonwealth were to reintroduce holistic, cross-sectoral management, the use of a statutory basis would be advantageous to set clear rules that necessitate cross-sectoral cooperation. It is significant that, under the revised bioregional planning process, the necessity for cooperation between the various Commonwealth portfolios engaged in marine activities is supported by the legislative mandate for bioregional planning that empowers the Minister for Environment to set conditions for proposed activities that would significantly impact on the environment of a Commonwealth bioregion.
Under the new bioregional planning process, management is refocused on biodiversity, such as on establishing and managing marine parks. To discharge these responsibilities, the Department of Environment has adequate institutional mechanisms and can deliver the goods, e.g. by setting conditions for proposed activities to address impacts on biodiversity. However, for fully integrated marine management, further study needs to be done to elaborate the circumstances in which cross-sectoral cooperation can better be conducted, i.e. whether by means of consultations between and mainstreaming through multiple agencies or by means of a centralised agency with whole-of-government liaison responsibilities. The Australian experience has been that the creation of a new specialised cross-sectoral liaison agency that overlaps the responsibilities of already established line agencies is fraught with risks for an adequate mandate and resources for the new agency.
Finally, it must be remarked that the elephant in the room of Australian integrated marine governance is the obstacle of cross-jurisdictional coordination. It is in the coastal waters that resources and their uses are the most intense and conflicting. The simple but main weakness of Australia's integrated marine governance remains its failure to achieve essential federal coordination across the jurisdictional boundaries Commonwealth and State waters.
Australian Conservation Foundation Marine Legislation Review 2004 (ACF Online Publications available at www.acfonline.org.au/default.asp?section_id=4).
Commonwealth of Australia Australia's Oceans Policy 1998 availabale at www.environment.gov.au/coasts/oceans-policy/index.html
Commonwealth of Australia South-east Regional Marine Planning Publications available at www.environment.gov.au/coasts/mpa/southeast/index.html
Foster, E., Haward, M., and Coffen-Smout, S. ‘Implementing integrated oceans management: Australia's south wast regional marine plan (SERMP) and Canada's eastern Scotian shelf integrated management (ESSIM) initiative’ Marine Policy Vol. 29, 2005, pp. 391–405. [CrossRef]
Stewart, J. and Jones, G. Renegotiating the Environment – The Power of Politics (Federation Press: Sydney, 2003).
Vince, J. ‘The South Eastern Regional Marine Plan: Implementing Australia's Oceans Policy’ Marine Policy Vol. 30, 2006, pp. 420–430. [CrossRef]
Wescott, J. ‘The development and initial implementation of Australia's “integrated and comprehensive” ocean's policy’ Ocean and Coastal Management Vol. 14, 1999 p. 387.
724 Associate Professor, Australian National Centre for Ocean Resources and Security. Associate Dean (Research), Faculty of Law, University of Wollongong. BA, LLB, LLM (Monash), Barrister and Solicitor ACT, Vic, High Court, Australia.
725 Senator Robert Hill World First Plan to Safeguard Our Oceans Media Release for the Minister of Environment and Heritage, Australia, 23 December 1998.
726 Australia's Oceans Policy (AOP) 1998, South-east Regional Marine Planning Publications p. 2, available at www.environment.gov.au/coasts/mpa/southeast/index.html (accessed April 2008).
727 The ‘Seas and Submerged Lands case’, New South Wales v Commonwealth (1975) 135 CLR 337.
728 Joanna Vince ‘The South Eastern Regional Marine Plan: Implementing Australia's Oceans Policy’ Marine Policy Vol. 30, 2006 420–430, p. 420.
729 AOP, p. 17. Geoffrey Wescott ‘The development and initial implementation of Australia's “integrated and comprehensive” ocean's policy’ Ocean and Coastal Management Vol. 14, 1999 pp. 387–398.
730 AOP, p. 15.
731 AOP, p. 16.
732 AOP, pp. 11–13.
733 Ibid.
734 The areas were identified in May 2006 and declared in July 2007, see: Senator Ian Campbell Australia leads world with new Marine Protected Areas – Media Release for the Minister of Environment and Heritage 5 May 2006 and the Hon. Malcolm Turnbull World's First Temperate Network of Marine Reserves Declared – Media Release for the Minister of Environment and Heritage 5 July 2007.
735 Senator Ian Campbell New focus for Australia's marine regional planning programme - Media Release for the Minister of Environment and Heritage September 2005.
736 Regulations concerning the procedure for consultation and preparation of bioregional plans under section 176(1) have not yet been adopted.
737 EPBC Act (Cth) Chapter 2, Part 3, Division 1.
738 Jenny Stewart and Grant Jones Renegotiating the Environment – The Power of Politics (Federation Press: Sydney 2003).
739 In this respect, it is noteworthy that the 2004 Australian Conservation Foundation Marine Legislation Review examined 250 Commonwealth, State, and Territory marine-related environmental laws and regulations that apply to the conservation, fisheries, petroleum, shipping, and tourism sectors for their utilisation of IOM principles. The review found that sustainable development objectives were, on the whole, poorly articulated albeit with various degrees of cogency across marine sectoral enactments; see: ACF Online Publications www.acfonline.org.au/default.asp?section_id=4 (accessed April 2008).