Principles and Problems of Shoreline Law by John Corkill, Southern Cross University
This paper posits nine key principles of property law relevant to lands bounded by tidal waters. They are core elements of the ‘doctrine of accretion’, an ancient English common law doctrine which applies to natural boundaries between land and water.The term ‘shoreline law’ has been adopted to encapsulate those elements of the doctrine which deal with boundaries formed by tidal waters, especially the sea.These principles of shoreline law determine the location of boundaries formed by gradually moving tidal water bodies and govern the ownership of land affected by the natural processes of sediment transport and changes in water level.This paper provides an overview of the context in which shoreline law operates by examining the relevance of global climate change, outlining the complex legal framework of surviving common law and State and Commonwealth statute law in which it is situated, and by considering other ecological, social and economic impacts likely to affect the Australian east coast.The protection of private property is thus placed in context as only one of a range of important competing priorities for public policy responses and public funding.The implications of a small sample of other legal considerations relevant to the loss of coastal land due to higher seas and greater coastal erosion are also discussed. Several problems with the application of current shoreline law under contemporary circumstances are identified and potential remedies for these are postulated.The paper asserts that landowners' attempts to use a 'storm of litigation' to protect their properties from climate impacts, or to sue for damages and loss, may be unsuccessful, unhelpful and a dangerous distraction for local and state government. A narrow focus on liability is not supported and the development of a sophisticated integrated response to the impacts of climate change, which includes, but is not limited to law, is advocated. The paper concludes by arguing that, while current shoreline law has much to offer in guiding legislators and policymakers, substantial further development of shoreline law, by the enactment of new statutes, is both necessary and desirable if the predicted impacts of higher sea levels and increased storminess on coastal environments, land and property are to be successfully addressed.A suite of policy and legal responses is posited as being necessary to respond to these challenges.