Land Administration 2003 Lecture 18 The Marine Cadastre

1
Land Administration 2003 Lecture 18 The Marine
Cadastre

• Institutional Legal Issues
• Andrew Binns May 1st 2003

2
Overview

• Background
• Legal Concepts
• Influential factors in the development of a
  marine cadastre
• Current Research
• Australias current marine management system
• The cadastral concept
• Coastal zone management
• ASDI in the marine environment

3
Background

• Australia lays claim to the third largest
  maritime jurisdiction in the world
• Economic, Social and Environmental need to
  effectively manage it
• Complex relationship and interaction between
  overlapping and sometimes competing rights,
  restrictions and responsibilities in the marine
  environment
• Complex managerial framework including government
  legislation and international treaties

4
ARC Project

• Collaborative research project between the
  Department of Geomatics, Geoscience Australia,
  the Queensland Department of Natural Resources
  and Mines and Land Victoria.
• Objective
• Provide a comprehensive spatial data
  infrastructure whereby rights, restrictions and
  responsibilities in the marine environment can be
  assessed, administered and managed (Collier et
  al 2001)
• 2 schools of thought on the development of such a
  management system
• Start afresh
• Use what we have learnt from the development of
  the terrestrial cadastre

5
Historical Perspective
Australian Domestic Law

• 1898 Australia establishes federal power over
  fisheries in Australian waters beyond territorial
  limits is still the legal basis for
  legislation in the marine environment.
• 1931 Statute of Westminster gives Australia
  full powers to make laws having extraterritorial
  operation.
• Confusion between States and the Commonwealth in
  regards to administering the offshore area
• Led to the States taking a management role from
  their coastlines out to 3 nautical miles

6
Historical Perspective
Australian Domestic Law

• 1973 - Commonwealth Labor Government enacted Seas
  Submerged Lands Act, which declared that the
  Commonwealth had sovereignty over Australias
  offshore area.
• This ended the States rights to govern
• 1975 - Act challenged in the High Court of
  Australia by the States, but upheld.
• 1979 - Offshore Constitutional Settlement
• Agreement between Commonwealth and States with
  offshore jurisdiction returning to pre Seas and
  Submerged Lands Act 1973.

7
Historical Perspective
International Law

• 1958 - Geneva conventions on the Law of the Sea
• High Seas Convention
• Convention on the Territorial Sea and contiguous
  zone
• Convention on the Continental Shelf
• Convention of the Conservation of Fisheries
• 1974-1982 - 3rd United Nations Convention on the
  Law of the Sea (UNCLOS)
• Major achievement of the convention was the
  recognition of maritime zones

8
Maritime Zones
9
Influential Factors Driving the Development of a
Marine Cadastre

• UNCLOS
• Sustainable Development
• Economic
• Native Title

10
UNCLOS

• Overarching international convention dealing with
  the marine environment.
• Article 76 of the convention enables a coastal
  state to extend the outer limit of its
  continental shelf
• Greater area for a coastal state to explore and
  exploit natural resources.
• However, coastal states must demonstrate a
  capability and intent to administer marine areas
  in terms of sustainable development obligations.

11
Sustainable Development

• Environmental Movement
• 9 of the worlds 17 fisheries are in serious
  decline with 4 depleted commercially.
• Agenda 21
• Document recognising the role of civil society in
  an attempt to address social, environmental and
  development efforts on an international stage.
• Australias Oceans Policy
• Document aimed at addressing the large-scale
  resource and environmental problems facing the
  marine environment.

12
Economic

• Extension of the outer limit of a nations
  continental shelf gives an extended area to
  exploit and explore.
• Example in the USA in the case of United States
  of America v. State of Alaska
• Oil and Gas reserves found off the coast of
  Alaska
• 1.6 billion case.
• If issues like this are to be avoided in
  Australia, then the implementation of a marine
  cadastre is of utmost importance.

13
Native Title

• 1992 - Mabo v. the State of Queensland
• Significant source of influence on societys
  approach to land management, and the rights,
  restrictions and responsibilities that go along
  with it
• But also created an area of uncertainty and
  complexity in relation to land held under other
  forms of title, including the marine
  environment.
• 1994 - Crocker Island Case
• First case in Australia which deals with Native
  Title over the sea and sea-bed.
• Claim was for exclusive possession of offshore
  waters.

14
Native Title

• Non-exclusive and non-commercial
• Rights to travel through or within determined
  area
• Rights to fish, hunt and gather for the purpose
  of satisfying their personal needs
• Rights to visit and protect places which are of
  cultural and spiritual significance
• Rights to safeguard their cultural and spiritual
  knowledge

15
Current Research

• USA
• Canada
• New Zealand
• Indonesia
• Project being undertaken within the Department of
  Marine Affairs Fisheries
• The Netherlands

16
USA

• Similar State/Federal marine administration
  system as Australia.
• US marine management system described as
  fragmented, complex and poorly understood
  (Neely 1998), hence
• Coastal Services Center of the National Oceanic
  Atmospheric Administration have developed a
  prototype Ocean Planning Information System
  (OPIS).
• First application of its kind to apply cadastral
  data toward integrated ocean planning.
• Developed as a web based tool.

17
USA

• Project attempted to deal with a number of issues
  which have corresponding importance in an
  Australian context, including
• The diverse range of players that have a role in
  the marine environment
• Numerous amounts of legislation and regulation
  relating to the marine environment
• Need to consider the requirements of all
  stakeholders
• Importance of accurate and well defined spatial
  boundaries
• Complex spatial and temporal interactions
• Associated problems when dealing with an
  ambulatory reference for boundaries

18
Canada

• Focus of research is on identifying marine limits
  and boundaries which would aid in the good
  governance of Canadas oceans.
• Main objectives
• Identifying and evaluating boundary information
  requirements
• Investigating spatial data uncertainty and its
  impact on data integration and boundary
  delimitation
• Developing and enhancing prototype visualisation
  tools for marine boundary delimitation

19
New Zealand

• LINZ have instigated an investigation into an
  Onland-Offshore cadastre for New Zealand.
• Development of broad set of guidelines/principles
  
• Design
• Spatial Extent
• Land-sea Boundary
• Boundary Point definition
• Boundary Lines
• Geodetic Datum
• Regulatory Framework

20
Current Marine Management within Australia

• Oil Gas Sector
• Responsibility is shared between the States and
  Commonwealth
• Petroleum (Submerged Lands) Act 1967 (Cth)
• Fisheries
• Governed by the OCS responsibility shared
• Australian Fisheries Management Authority (AFMA)
• Fisheries Management Act 1991 (Cth)
• Fisheries Administration Act 1991 (Cth)
• Fisheries Act 1995 (Vic)
• Aquaculture
• Management rests with the States

21
Current Marine Management within Australia

• Shipping
• Shared responsibility depending on the voyage
  being undertaken, not the ships location
• Navigation Act 1912 (Cth)
• Conservation
• Environmental Protection and Biodiversity
  Conservation Act 1999 (Cth)
• Marine Parks Sanctuaries
• National Parks (Marine National Parks and Marine
  Sanctuaries) Act 2002 (Vic)
• Parks Victoria / Fisheries

22
Current Marine Management within Australia

• Over 47 different Commonwealth maritime
  regulatory tools are in force within Australia.
• Over 51 different regulatory tools within
  Victoria
• Over 30 International Maritime Conventions to
  which Australia is a party
• International Convention for the Prevention of
  Pollution from Ships (MARPOL) 1973/78
• Convention on the Protection of Underwater
  Cultural Heritage
• Over 15 different Legislative and Commonwealth
  Institutions governing the marine environment
• Australian Maritime Safety Authority
• Environment Australia

23
Marine Cadastre

• No strict definition still evolving.
• Marine cadastre is a system to enable the
  boundaries of maritime rights and interests to be
  recorded, spatially managed and physically
  defined in relationship to the boundaries of
  other neighbouring or underlying rights and
  interests. (Robertson et al, 1999).
• It is a marine information system, encompassing
  both the nature and spatial extent of the
  interests and property rights, with respect to
  ownership, various rights and responsibilities in
  the marine jurisdiction. (Nichols et al 2000).

24
Marine Cadastre

• Marine Cadastre model developed elsewhere cannot
  simply be adopted by Australia.
• Rights, restrictions and responsibilities need to
  be assessed, administered and managed.
• Marine Cadastre Concept Diagram

25
Terrestrial Cadastre

• Defined as
• Parcel-based and up to date land information
  system containing a record of interests in land
  (e.g. rights, restrictions and responsibilities)
• Cadastral trend is for the textual and spatial
  components to be brought together.
• Most cadastral maps represent boundaries to a
  graphical accuracy.
• Centralised cadastral system in each State and
  Territory of Australia.

26
Terrestrial Cadastre

• Why not simply apply Australias terrestrial
  cadastre to the marine environment?
• There are unique problems in the marine
  environment
• It is not possible to use classical means of
  boundary demarcation offshore
• It is common for overlapping rights to exist in a
  single location
• Rights can vary with time, adding a fourth
  dimension

27
(No Transcript)
28
Coastal Zone

• Added to the complexity of issues in the marine
  environment, is the fact that what happens on
  land ultimately effects the marine environment
• E.g. 70 of marine pollution comes from land
  based activities
• Australias current cadastre stops at High Water
  Mark (HWM).
• The interaction of various rights restrictions
  and responsibilities in time and space does not
  stop at the HWM
• Land and Marine components need to be compatible.

29
Coastal Zone

• Need to bridge the gap between the terrestrial
  and marine environments, but how do we do this

30
Australian Spatial Data Infrastructure

• Is the foundation for the successful
  implementation of a marine cadastre throughout
  Australia, as it enables the organisation of data
  across different disciplines.
• Core components that need to be applicable at
  each management level e.g. Local, State
  National

31
Australian Spatial Data Infrastructure

• Interoperability.
• Fundamental Datasets maintained by different
  suppliers development of a maintenance
  environment
• Issues of data access and pricing in the marine
  environment.
• Approach in the marine environment must be based
  on existing and emerging ASDI components.
• Coordination of spatial information in the marine
  environment needs a leading agency.

32
Conclusion

• No strict definition of the Marine Cadastre
  still evolving.
• Marine Cadastre needs to be compatible with the
  Terrestrial Cadastre
• Provide for more effective management of
  Australias coastal zone.
• Fundamental cadastral principles can be applied
  to the marine environment, however.
• There are unique problems which occur in the
  marine environment
• Still need to be incorporated into the cadastral
  system.

33
Conclusion

• ASDI is fundamental to the creation of a Marine
  Cadastre
• Aid in developing effective marine management
  tools
• Improve land use planning near Australias
  coastline
• Help in resolving coastal boundary issues
  ambiguity

34
Exam Question

• List and describe 3 key reasons for the need to
  utilise knowledge and principles gained form the
  terrestrial cadastre in the development of a
  marine cadastre for Australia?