Year

2021

Degree Name

Doctor of Philosophy

Department

Australian National Centre for Ocean Resources and Security

Abstract

Many coastal land titles in New South Wales are already at risk from shoreline recession and more will become affected, as local impacts of global climate change, specifically higher sea levels and more extreme weather events, produce more erosion and inundation of coastal lands. This thesis explores the claimed private property ‘right’ to defend against the sea to protect private land from coastal erosion, and the risks this poses to the public rights to use the foreshore and coastal waters for bathing, surfing or navigation, in the foreseeable future, as coastal lands experience ‘coastal squeeze’, due to rising sea levels and fixed seawalls. This term from biological and tourism contexts, is applied to these public rights and likely impacts on future social, economic and ecological uses of coastal lands as they are squeezed, are discussed and illustrated using original diagrams. The problem is thus defined: claimed private property rights conflict with existing public rights, competing for priority use of the foreshore. As a step towards ascertaining whose rights would prevail in future conflicts, the thesis examines these competing rights and investigates which rights are dominant in current law. Guidance is sought from the courts and NSW legislature as arbiters of similar prior conflicts. Senior appeal court decisions and statutory provisions in five fields of law applicable to coastal lands in this jurisdiction are reviewed, and their relative status under current law is established. However it is posited that a future government could adopt a policy to reverse the status quo, but to do so would need to obtain the legislature’s support for enabling legislation. Hence to estimate possible future events a diverse range of potential responses by a future government to emerging conflicts over competing rights, are identified. A suite of philosophical views which may influence future government policy on whose rights should prevail, are canvassed. Criteria, on ethical land management and successful public policy, drawn from relevant literature, are used to assess the merits of these potential responses. Using these assessments and three political criteria, the responses most likely to be pursued are identified. With a credible forecast of the likely policy environment of the future, the question, ‘will private property rights trump public rights to use coastal lands under climate change conditions?’ is answered in the negative.

FoR codes (2008)

180111 Environmental and Natural Resources Law, 180119 Law and Society, 180122 Legal Theory, Jurisprudence and Legal Interpretation, 180124 Property Law (excl. Intellectual Property Law)

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Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong.