Chapter 4 - Heritage Issues and Related Current Initiatives
Term (c) of the Terms of Reference specifically requires that the Committee examine the heritage protection of ANZAC Cove, including the proposed joint historical and archaeological survey of ANZAC Cove and proposals for the establishment of an international peace park, as well as national and world heritage listing for the area.
The Majority Report attempts to cover Term (c) by tagging on the end of Chapter 4 a section on Heritage Issues following a series of findings and recommendation.
We have however preferred to adopt a more systematic approach given that the heritage issue was so comprehensively covered at the Inquiry. This is also in keeping with the request of Senate and the terms of reference.
It must be remembered that it is the Turkish Government which has the responsibility for protecting the ANZAC sites. Known as the Gallipoli Peace Park, the sites are protected pursuant to two Turkish laws, the Gallipoli Peninsula Historical National Park Law and the Law for the Protection of Cultural and Natural Heritage.
The DEH Submission reaffirms that ANZAC Cove is part of the sovereign territory of Turkey and that consequently, any protection and management arrangements for the area are matters within the sovereign responsibility of the Turkish Government. ANZAC Cove is part of the Gallipoli National Park which has also been declared by Turkey as a historical site.
DFAT has joined with the Department of Environment and Heritage (DEH) in raising the issue of the heritage status of the ANZAC site on various occasions with Turkish officials.
4.1 National Heritage Listing
4.1.1 Relevant Sections of the Legislation
The National Heritage List was established through amendments to the Environment Protection and Biodiversity Conservation Act 1999 (the Act) which came into effect on 1 January 2004. The Act specifies the conditions pursuant to which places in Australia and in other countries can be included on the National Heritage List.
The DEH Submission highlights that section 324J(2A) of the Act stipulates that the Minister for the Environment and Heritage MUST NOT include on the National Heritage List a place wholly or partly in a foreign country unless the Minister is satisfied that the national government of the country where an overseas place is located has agreed to its inclusion.
The relevant except of section 324J(2A) is cited in the DEH Submission as follows:
(2) The Minister must not include in the National Heritage List a place that is wholly or partly in a foreign country unless:
(a) the Minister is satisfied that the national government of the foreign country has agreed to the inclusion in the List of the place so far as it is in the country;
The DEH Submission also states that the statutory framework for the assessment of nominations pursuant to section 324E (2) and section 324E (3) of the Act does not apply to nominations located partly or wholly in a foreign country. This enables consultations to take place with the national government of the foreign country. The relevant provisions of the Act are referred to in the DEH Submission as follows:
(2) The Minister must give the Chair of the Australian heritage Council a written request for the Council to assess under section 324G whether the place meets any of the National Heritage criteria, unless the Minister rejects the nomination under this section.
(3) If the Minister must give the Chair a request, he or she must give the request within 10 business days after receiving the nomination, unless:
(a) the place is wholly or partly outside the Australian jurisdiction;
Hence, it is clear from the provisions that procedures for listing of a foreign place are different to listing of a place which falls within Australia jurisdiction.
In evidence, Mr Young (DEH) stated that there were about five or six overseas applications that the DEH had extant at the time.[180]
4.1.2 Initial Discussions with Turkish Authorities
Mr Newman (DFAT) gave evidence that the first indications given to Turkey in relation to the possibility of Australia's heritage listing of the Gallipoli Peninsula were in 2002. The news was conveyed to the Turkish authorities by DEH with further discussions occurring in 2003.[181] Whilst DEH had some direct contact through the Turkish Ambassador in Canberra and also overseas with Turkish officials, it was principally pursued through DFAT and the Australian Embassy in Ankara. [182]
The DEH Submission also indicates that discussions with the Turkish Government on the proposal for inclusion of the ANZAC area on the National Heritage List commenced in 2002. Mr Young (DEH) stated his belief at the Inquiry that initial discussions had been held between Australian Government officials and Turkish officials in about September 2002.[183]
Mr Young (DEH) advised the Committee of the process in that:[184]
Basically, it requires the Australian Government to consider nominations for overseas places to be put on the National Heritage List. It requires that, before those nominations are accepted, there is discussion and agreement reached with the foreign country. It requires that, prior to placing an overseas place on the National Heritage List, the Minister for Environment and Heritage must also have the approval of the foreign minister.
Mr Newman (DFAT) outlined Turkey's initial reaction to the Committee as follows:[185]
It is a bit hard to categorise because there are a number of different ministries involved in looking at the issue, but the basic reaction from Turkey was largely, initially, noncommittal. Looking at the idea, we had some officials who were quite enthusiastic about it but the main issue that they raised was that this would take a lot of time to consider and they would need to look at it very closely and understand the full potential ramifications. But they understood fully, as the Prime Minster has indicated on many occasions, that the proposal would not go all the way forward without the agreement of the Turkish government.
The DEH Submission indicates that that Prime Minister announced his intention to put forward the ANZAC area as the first nomination to the National Heritage List at the launch of the new heritage system on 18 December 2003. In his speech, the Prime Minister stated that discussions on the proposal had commenced.[186]
At the Inquiry, the Committee sought to question officials about whether it has been made clear publicly in statements that the listing was dependent upon agreement with the Turkish authorities. Mr Newman (DFAT) gave evidence to the Committee that prior to this announcement, the issue has been raised with the Turkish authorities on at least 28 occasions:[187]
Senator Bishop—Some consultation in 2002 ramped up the process of negotiation from September 2003, the Prime Minister made his announcement in December 2003, and you have outlined that the Turkish government’s reaction was mixed: initially noncommittal and of interest over time. How many meetings on this issue did DFAT attend with the Turkish government in Canberra and Ankara prior to 2005?
Mr Newman—We have raised this with the Turkish authorities to date at least 28 times and 12 times before the Prime Minister’s announcement in December 2003. On the last of those occasions, we had informed the Turkish authorities of the intention of the Prime Minister to make this reference, to which they agreed, as long as the caveat, which was in the statement, was made.
Mr Young (DEH) elaborated on the nature of these discussions:[188]
Senator Bishop—That is probably correct. After that meeting in September 2002—in which officials of your department broadly canvassed issues with the Turkish government—when was the next meeting?
Mr Young—What happened was that there were a series of briefings given to Turkish officials in the lead-up to the passing of the amendments to the EPBC Act. The nature of those briefings was that they were a series of updates on the progress of the legislation. Turkey was kept informed at all stages over a number of months. There were a number of calls made to the Turkish ambassador here in Canberra. There were communications made through the Department of Foreign Affairs and Trade directly to Turkish officials. There was a general desire, and I believe an intent, to keep Turkey well informed on how the bill was being prepared and the way in which overseas nominations might be considered—and indeed there was a desire to learn how Turkey might feel about a nomination for ANZAC Cove.
Senator Bishop —When was the bill finally passed? When did it finally go through the parliament
Mr Young—On 8 September 2003.
Senator Bishop —And it was proclaimed to have effect from 1 January 2004?
Mr Young—Correct.
Senator Bishop—The previous department advised us that from around September 2003 the intensity of the various discussions or negotiations with the Turkish government on this issue increased dramatically prior to the Prime Minister making his statement in December 2003. Were the negotiations that were conducted between September and December attended by officials of your department?
Mr Young—Not the ones that occurred in Turkey. I believe that officers may have attended some meetings in Canberra with the Turkish ambassador or their delegates.
Senator Bishop —But the post essentially had carriage of the matter in Turkey.
Mr Young—In terms of representing the discussions with Turkey, yes.
Senator Bishop —You advised them on the detail, the intricacies and the desire of the government from the perspective of your department.
Mr Young—The sort of information we provided was, as I mentioned, the way that the legislation was structured and how it would operate, to ensure that Turkey understood as closely as possible what the Australian legislation was saying.
Senator Bishop —Since that time there has been something in excess of 25 meetings between officials of the Australian government and the Turkish government. How many of those meetings addressed the issue of the heritage listing of the Gallipoli site? Do you know?
Mr Young—I do not know that. DFAT held meetings. I could not say how many there were. I presume a range of issues were discussed, and one of them may have been the national heritage listing. It is a question for—
Senator Bishop —But you would receive advice on the progress of negotiations
conducted by the post on your behalf.
Mr Young—Yes, cables are returned to Australia. We could go through all the cables and work out which ones did and did not refer to this matter. I do not have that information with me.
It is clear from the evidence given that issues about Turkish sovereignty and how the heritage legislation could potentially affect issues for the state were uppermost in the discussions. Hence, any suggestion that Australian officials did not make this clear are unfounded.
4.1.3 Turkish Concerns Regarding Sovereignty
The key issue in relation to heritage listing is the sensitive issue of sovereignty. Whilst the Turkish government has not out rightly rejected the proposal for heritage listing, it has been a difficult issue for them. This was highlighted in the evidence given by Mr Newman (DFAT) to the Committee:[189]
Mr Newman—No. I think there is an element of confusion here. This was raised, I think, in the earlier discussions in estimates, with the Department of the Environment and Heritage, whom I think have issued a correction on that because the Turkish Prime Minister made no statement at that time saying that there was no approval or whatever for this listing. In fact, at no time have the Turkish authorities in Ankara told us that the proposal was not acceptable. They have told us at times that it involves a lot of sensitive thinking for them about the sovereignty. It is particularly difficult for them, I think, because of the treaty of Lausanne itself, for which they need to think through implications and what it might mean. While being sympathetic to the Australian case, they have to be aware of possible precedent being set for other countries as well.
Senator Bishop—That is very interesting. I have been pursuing these discussions on apparently the wrong basis. Are you telling me that the request by the Australian government to be able to list Gallipoli on the National Heritage Register has not yet been rejected by the Turkish government?
Mr Newman—It has not been rejected by the Turkish government, but I would qualify that by saying that in the discussions between the two prime ministers—and in our own Prime Minister’s statement afterwards—they agreed to this joint historical archaeological study and ‘to continue to consult closely with Turkey over our desire, fully consistent with Turkish sovereignty over the area, to symbolically recognise the historical importance of the ANZAC area’.
Senator Bishop —That form of words indicates to me an alternative and different approach to achieve listing, apart from that which is in the act, which Environment and Heritage have been pursuing and which your department has pursued some 28 times over the last two or three years. Is that correct?
Mr Newman—To go back a little on that, we had never had any rejection of the proposal in Ankara, but I think it was becoming apparent that the whole issue of sovereignty would take a long time to resolve and it was then prudent—
Senator Bishop —To think about alternative options.
Mr Newman—to think about alternative ways. I think the Prime Minister seized that opportunity of meeting with the Prime Minister of Turkey. We both want the same thing, which is symbolic recognition of the importance of this area to Australia. There is no difference between the two governments on that point.
The issue was summed up by Mr Newman (DFAT) in response to a question from Senator Watson, namely:[190]
... everything that we have been doing, including in discussions with the Department of the Prime Minister and Cabinet, has been based on the understanding that nothing could be done on the heritage listing without the approval of the Turkish government. This has been a matter that has been discussed with them over a period of time and they have expressed to us more recently the need to examine the issue very closely for all the aspects that relate to their own sovereignty.
Senator Watson—But, apart from the protocol arrangements, I just want to make it clear and put it on the record that we have an act of parliament that is quite specific in relation to this area, which I think government officials also need to acknowledge.
Mr Newman—Yes, indeed we do.
It has been important from the Australian side to ensure that the Turkish authorities fully understand the potential implications of the heritage legislation. Mr Newman (DFAT) in evidence stated:[191]
Senator Watson—While the Turkish authorities have not said no to the proposals for the listing, there have been Turkish concerns over the proposed listing of the ANZAC area on the National Heritage List—is that true?
Mr Newman—That is correct.
Senator Watson —There have been concerns?
Mr Newman—There has been a concern that Turkish authorities fully understand the potential implications including in terms of precedents.
4.2 Symbolic Recognition of Gallipoli Peninsula
Since the meeting of the two Prime Ministers on 26 April, there is now an agreed strategy for consultation on the mutual desire between Australia and Turkey, fully consistent with Turkish sovereignty, to have the historical importance of the ANZAC area symbolically recognised.[192]
As Mr Young (DEH) indicated in evidence:[193]
I think we are now operating within the boundaries set by the meeting of the two prime ministers, which is to look at an appropriate mechanism for symbolic recognition. If that includes listing, then so be it. I do not think listing has been ruled out but I think that the idea is to explore a range of appropriate, mutually acceptable ways in which this matter can be progressed.
The Prime Minister’s media release following his meeting with Prime Minister Erdogan on 26 April 2005, referred to those negotiations. According to the DEH Submission, this is the current position on national heritage issues.
Prime Minister Howard referred to the protection already afforded to the ANZAC site by Turkey:
I noted with appreciation the extensive protection already afforded by Turkey to the area, including its declaration as a National Park in 1973 and its designation as a Heritage site in 1980.
Prime Minister Howard, yet again indicated Australia’s continued commitment to consult with Turkey over our desire “fully consistent with Turkish sovereignty over the area, to symbolically recognise the historical importance of the ANZAC area.”
In relation to the symbolic recognition, Mr Newman (DFAT) advised the Committee as follows:[194]
The only instructions we have are the basis of the ongoing IDCs, the mandate for which is the Prime Minister’s statement of 26 April, so it is looking for a way that will symbolically recognise. It could be through amended legislation, it could be through another way, but that is me speculating. The core is the Prime Minister’s message.
Mr Young (DEH) sought to explain the terms "symbolic listing" and "symbolic recognition":[195]
Senator Bishop—‘Appropriate mechanism for symbolic listing’—that is a very
broad set of words. What is the difference between symbolic listing and actual listing?
Mr Young—I think the term symbolic is designed to differentiate the overseas listing from the domestic listing. As you would be aware, the domestic listing has the full force and effect of the Environment Protection and Biodiversity Conservation Act, which requires owners of listed places to carry out certain actions, including preparation of management plans. It also has severe penalties associated with any actions that would damage the values for which the place was listed. I think the term ‘symbolic’ is to ensure that Turkey fully understands that Australia has no intention for those powers that apply in the domestic context to be applied to Turkey. It is to ensure that it is seen to be an entirely symbolic recognition and very clearly recognises Turkish sovereignty over the place.
Senator Bishop—Perhaps we are getting to the heart of the problem. You used the phrase previously ‘symbolic listing’ and you then used the phrase ‘symbolic recognition’. Which do you mean?
Mr Young—As I have said, symbolic recognition could include listing but there may be other ways of achieving that.
Senator Bishop—In fact, for overseas sites to be listed on the Australian register requires the consent of the overseas government?
Mr Young—Correct.
Senator Bishop—Once that consent is given and the listing is concluded, that is an actual or real listing.
Mr Young—Correct.
Senator Bishop—The consequence of that actual or real listing of the overseas site is that it may only have symbolic effect in the foreign country.
Mr Young—Correct.
Senator Bishop—But it is not necessarily a symbolic listing; it is an actual listing.
Mr Young—Correct.
Senator Bishop—The set of instructions that have been given, the framework established by the two prime ministers, PM&C’s chairing of the IDCs to put flesh on the bones, some of the negotiations that are going to be pursued in the near future and more in the medium term as outlined by Mr Sullivan: are they designed around actual listing with symbolic consequences or symbolic listing with, by definition, no consequences?
Mr Young—You are correct in your assertion that the boundaries have deliberately been drawn widely. One of the things we are trying to do is to engage with Turkey to find a mutually acceptable way forward. As I have said, that does not rule out listing if we can reach agreement. If listing, as we currently know it, is not acceptable to Turkey then we have some parameters to look at ways in which we can proceed.
We would yet again stress that the Turkish authorities, and not Australia, have sovereignty over the site. Australia’s desire to see historical recognition of the site can only be realised through continued cooperation.
Indeed, the Australian Prime Minister then outlined the agreement between the two leaders on continued cooperation as follows:
“We agreed to further enhance cooperation on ANZAC issues, including the preservation of sites and the environmental and historical values of the area. Mr Erdogan agreed with my proposal that there be a joint historical survey of the ANZAC area (including archaeological aspects) to provide a clear basis for balancing development plans for the park with the preservation of key sites. We also agreed to a joint engineering review to ensure the roadworks, including measures to control erosion, in the ANZAC Cove area are completed in a way as sympathetic as possible to the landscape. We noted the large and growing number of visitors from many nations and that plans for the future of the Park aimed tom provide a safe environment for visitors whilst protecting important historic sites. I noted the cooperation to date and welcomed the opportunity to provide further assistance in the future.”
The DVA Submission outlines that DVA was asked to lead the joint historical and archaeological survey of ANZAC Cove on behalf of the Australian Government. The first phase of this review took place from 15-20 May 2005 when an official delegation led by DVA and accompanied by the Australian Ambassador to Turkey, visited the Gallipoli Peninsula and Ankara and met with Turkish officials. The delegation included members from the following:
- The Department of the Prime Minister and Cabinet (PM&C);
- ARUP Australia (civil and geotechnical engineers);
- Mr Edaw Gillespie (landscape architect); and
- The Australian War Memorial.
The substance of the meeting with Turkish officials was explained in the DVA submission as follows:[196]
They were briefed on Turkish proposals to complete earthworks, paving, drainage and shore protection. The party was invited, in keeping with Prime Minister Erdogan’s offer to Prime Minister Howard, to offer views and suggestions on the proposed works.
As indicated in the DVA Submission, this process is proceeding and further, that a further historical survey of the ANZAC area (including archaeological aspects), to provide a clear basis for balancing development plans for the park with the preservation of key sites, will also proceed.
4.3 Establishment of an International Peace Park and World Heritage Listing
The DEH Submission makes clear that as the Gallipoli Peninsula is Turkish territory and hence, any proposal for the development of an international peace park is a matter for the Turkish Government.
Furthermore, World Heritage nominations can only be made by the country in whose territory the proposed place is located. Consequently, any application for World Heritage Listing needs to be made by turkey. The DEH Submission indicates that at this time, DEH is not aware of any decision by Turkey to nominate the Gallipoli peninsula, or part thereof, for World Heritage listing.
The DEH Submission concludes that should the Turkish Government plan to develop a proposal for an international peace park or a World Heritage nomination, DEH would provide advice to the Australian Government on ways in which Australia could be supportive of either or these proposals.
As indicated above, we recommend that Australia base a full time representative at the CWGC at Canakkle. This appointment will not only be a formal recognition of the place that the Gallipoli Peninsula holds in the Australian national psyche but most importantly, it can provide an important resource to assist the Turkish Government with World Heritage Listing.
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