December 19th 2007
Red Baron case reveals "dangerous precedent"
Following the legal win to the Red Baron Seaplanes announced yesterday by the Administrative Appeals Tribunal, Red Baron partner, Carol Mills, moved to heal rifts within the community over the case. But while the proponents may be licking their legal and financial wounds a much broader issue has been revealed by the appeal. One which former Executive Director of the Great Barrier Reef Marine Park Authority, Dr Don Kinsey, thinks could "set a very dangerous precedent." This was GBRMPA's decision to concede its jurisdiction over Horseshoe Bay.
The nearly year long dispute is reported to have cost the Mills $60,000 but Carol Mills called for respect of their opponents, Logan and Tanina Connolly's, rights to object. Carol Mills told Magnetic Times, "I think it's really important that people have a voice." she said. "I also respect their rights to uphold their opinion and I absolutely do not support people who say they should be run off the Island."
Carol Mills was however critical of the legal system which allows complainants through the AAT to make objections, which cost the other side and the public purse large amounts of money, for which costs cannot be retrieved from the losing party. "The AAT, as a court, should be looked at. If mediation prior to the legal case would have occurred it is possible some of the issues could have been dealt with and the cost to the public of the AAT case avoided. We would like mediation to be mandatory when applied to AAT cases."
The complete ruling by the AAT's Justice Garry Downes is expected to be released in full tomorrow but Carol Mills accepts that the safety and noise issues, such as the requirement that the Red Baron's noise not exceed 75 decibels from 1000 metres of the high tide mark, made by the Tribunal, will now be made part of their permit conditions when operating at Nelly or Picnic Bays but not at Horseshoe where most of the plane's operations occur. "None of the decision had anything to do with Horseshoe Bay. It's now under the jurisdiction of the State (Queensland)," said Carol Mills.
This is because of the startling concession, in the hearing on Monday, by GBRMPA's lawyer, that accepted a Mill's defence team argument that Horseshoe Bay is, by law, not within the jurisdiction of the GBRMPA but accepted as an "internal waterway" of Queensland. The issue was contested by Tanina Connolly at the hearing who questioned why all the maps indicated that it was.
Carol Mills told Magnetic Times however, "If you look at the Act the definition has always been there. It's not defined on the maps. It is not a precedent. It's always been there but for some reason hadn't been applied.
The ramifications of this concession will, no doubt, be occupying the minds of GBRMPA's legal Department for some time and it seems incredible that for decades this anomaly has existed without attention being drawn to it.
Dr Don Kinsey, a former Executive Director of GBRMPA, told Magnetic Times, "On the basis of what we know so far this sets a very dangerous precedent."
Magnetic Times understands that the formula used to determine an "internal waterway" is based on the drawing of a line between the two headland points of the bay. The line becomes the diameter of a circle and that, if the bay-side semi-circle which is then formed is smaller in surface area than the body of water on the same side, the bay may become an "internal waterway" and fall out of GBRMPA's jurisdiction. This is apparently the case with Horseshoe Bay.
Don Kinsey believes that mainland bays may have been assessed for this anomaly and corrected in the past but he isn't so sure about bays on Great Barrier Reef Islands. Using the formula Don believes that bays with a fairly narrow opening, as can be found in the Whitsundays and, even, possibly, Florence Bay on Magnetic, could now be at risk of a legal challenge to GBRMPA's authority.
Magnetic Times has sought comment from GBRMPA and the Queensland Environmental Protection Agency (who co-sign the permits with GBRMPA) regarding the implications and is awaiting a reply.
In the meantime it should be noted that Horseshoe Bay now defaults into the jurisdiction of Queensland's EPA as part of the State Maine Park which was formerly recognised to only exist between the high and low water mark. This will, it seems, now extend out to where the GBRMP waters begin - beyond the headland.
Story: George Hirst
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