It is beyond scientific doubt that increased heat in the ocean and melting ice caps and sheets will cause a rise in global sea levels. It is hard to predict the exact amount of this rise, as so much depends on what action is taken across the globe to reduce carbon dioxide emissions. Even if emissions are immediately reduced, a global sea-level rise of 0.28-0.60m by 2100 is still possible. However, if we retain the status quo and emissions continue to rise, global sea-level rise in the range of 0.53-0.97m by 2100 is likely. Furthermore, sea-level rise will exacerbate the impact of extreme weather events, with the potential for more frequent and more damaging storm surge and erosion events.
University of Queensland law lecturer Dr Justine Bell
This poses a serious threat to Australian communities. Australia has approximately 35,000kms of coastline, with the majority of the nation’s population settled close to the coast. It is estimated that 85% of Australians live within 50 kilometres of the coast, and in 2009, there were over 711,000 residential addresses located within 3km of the shore, and less than 6 metres above sea level. Consequently, there are billions of dollars worth of private property and infrastructure threatened by sea-level rise and extreme weather.
Given this level of risk, it seems logical to introduce strong regulation for developments in coastal areas. The reality though is far more complicated. Governments have to weigh up the sanctity of private property rights with competing environmental objectives. Strong presumptions against retrospectivity make it difficult to regulate existing developments along the coast, and compulsorily acquiring land may be only way for governments to completely alleviate risks to private property. This all occurs in a context where the timescales are long, and scientific uncertainty is high.
On the flipside though, these long timescales provide a unique opportunity for governments to spread costs and implement a strategic approach to acquiring property. Governments can, in effect, ‘time-limit’ communities, as the impacts of sea-level rise may not be experienced for several decades. Governments may prefer to implement measures that allow homeowners to reside in their properties for the remainder of their lifetime, or until the risk materialises, rather than acquiring properties immediately. This would achieve a compromise, by allowing landholders to remain in their homes and communities for the short- to medium-term, whilst still ensuring that homes vulnerable to sea-level rise are eventually moved into public ownership.
Theoretically, a land acquisition policy can be implemented gradually, even over several decades, with priority given to those properties most at risk in the short-term. However, this approach would require a significant re-imagination of the role of land acquisition laws in Australia. These laws differ considerably across the States, and most Acts would require some amendment. In particular, laws could be amended to allow for acquisition and lease-back land, for long-term notices of intention to acquire, and for scaled compensation schemes.
These are difficult policy questions to resolve, particularly given the high prominence of privately-held property in Australia. That said, deferring action is not a sound approach, as extreme events and associated calls for disaster relief will result in huge financial shocks for government. It is crucial that these issues are considered now, to allow for the cost burden to be spread over time.
Dr Justine Bell is a Lecturer in the TC Beirne School of Law at the University of Queensland. Her book, Coastal Development and Climate Change Law in Australia, was recently published by the Federation Press.