CHAPTER 4
IMPLEMENTING AUSTRALIA's INTERNATIONAL OBLIGATIONS
National and International Obligations
4.1 The Committee notes that there are now more than one thousand treaties
that serve as sources of international environmental legal obligations.
While Australia is not a party to all of these conventions, it has signed
or ratified nearly 100 environmental treaties. [1]
4.2 The Committee considers that it is beyond dispute that the Commonwealth
has the general power to implement its international obligations under
any of the three bases of the external affairs power. The external affairs
power can be employed by the Commonwealth: (i) to regulate any matter
that occurs outside of Australia, [2] (ii) to
implement a bona fides treaty to which Australia is a party through
legislation that is in reasonable conformity with the treaty, [3]
and (iii) to control any matter that is intrinsically of international
concern, independently of any treaty. [4]
4.3 The Australian Conservation Foundation (ACF) argued that the Commonwealth
must employ the external affairs power, and other relevant powers, to
effectively implement its international obligations. The ACF emphasised
that as the Commonwealth is the level of government responsible for negotiating
and signing international agreements, it must also be responsible for
ensuring that the States and other sectors of the Australian community
meet Australia's obligations. [5]
4.4 The EDO stressed that international obligations undertaken by the
Nation as a Nation should be implemented and administered at a national
level. [6] The Environmental Defender's Office
also asserted that the effective implementation of international environmental
treaties requires a strong role for the Commonwealth in enforcement, and
good inter-governmental coordination and cooperation:
The most efficient method of enforcement and coordination is through
a dedicated centralized authority at the Commonwealth level. A single
centralized authority can avoid duplicative or inconsistent standards,
jurisdictional rivalry, and economic competition which may be a problem
with multiple State authorities. Accordingly, a strong Commonwealth involvement
in enforcing and coordinating Australia's international environmental
obligations, is not only crucial to the implementation of environmental
treaties, but is also the most efficient mechanism for ensuring that treaty
obligations are observed. [7]
4.5 The Committee notes the growing interdependence and need for cooperation
among countries in successfully addressing international environmental
problems. The Committee believes that the Commonwealth should be actively
engaged in seeking solutions to these problems.
Recommendation 5
The Commonwealth must fully and effectively exercise its powers in
negotiating, implementing and enforcing its international environmental
obligations. National obligations require national administration.
4.6 Evidence presented to the Committee suggested that full and careful
implementation of the Convention on Biological Diversity would allow the
Commonwealth, under the external affairs power, to establish a comprehensive
legal framework for environmental protection for all of Australia. [8]
Such a framework would allow the Commonwealth to promulgate strong uniform
national standards for environmental protection.
4.7 Such a result is possible because the definition of biological diversity
under the Convention is so all encompassing in scope (including all living
organisms in Australia and their variability, as well as all Australian
ecological complexes of which they are a part) as to include virtually
the entire environment of Australia, and because of the extensive obligations
on Australia (especially Articles 6 though 15) [9]
to conserve and make sustainable use of all of its biological diversity.
4.8 The Committee does not believe it has enough information to recommend
that the Convention on Biological Diversity be used to establish a comprehensive
Commonwealth legal framework for environmental protection. However, the
Committee believes that further investigation is warranted.
Recommendation 6
The Government should conduct an inquiry into the possible use of
its obligations under the Convention of Biological Diversity to establish
a comprehensive framework for environmental regulation in Australia.
Implementing the World Heritage Convention
Australia's obligations to protect World Heritage
4.9 At the outset, the Committee notes that a very large number of submissions
expressed concerns about Australia's fulfilment of its obligations under
the Convention Concerning the Protection of the World Cultural and
Natural Heritage, (referred to in the following paragraphs as the
Convention or the World Heritage Convention). [10]
Similar concerns were again were also voiced in oral evidence taken by
the Committee.
4.10 A General Conference of the United Nations Educational, Scientific
and Cultural Organisation (UNESCO) adopted the World Heritage Convention
in 1972. Australia ratified the Convention in 1974 and it came into force
on 17 December 1975 [11] under Article 33.
4.11 The World Heritage Convention places a range of obligations on the
Commonwealth Government for the protection of natural and cultural heritage.
Articles 4 through 6 set out the principal obligation of parties to the
Convention. In particular, each party has a duty "to take the appropriate
legal, scientific, technical, administrative and financial measures necessary
for the identification, protection, conservation, presentation and rehabilitation
of [World Heritage]". [12]
4.12 The Convention establishes a World Heritage List, which is administered
by the World Heritage Committee. The Committee also produces Operational
Guidelines for the Implementation of the World Heritage Convention.
These Guidelines provide criteria for the assessment of nominated areas,
and details the processes for implementing the Convention.
4.13 There are currently 13 areas in Australia listed as World Heritage
Areas under the Convention. These are:
Kakadu National Park - 1981
Great Barrier Reef - 1981
Willandra Lakes Region - 1981
Tasmanian Wilderness - 1982
Lord Howe Island Group - 1982
Uluru-Kata Tjuta National Park - 1987
Central Eastern Rainforest Reserves - 1987
Wet Tropics of Queensland - 1988
Shark Bay - 1991
Fraser Island - 1992
Australian Fossil Mammal Sites (Riversleigh/Naracoorte) - 1994
Heard and McDonald Islands - 1997
Macquarie Island - 1997 [13]
Other areas such as the Blue Mountains are being nominated for World
Heritage Listing.
4.14 The Tasmanian Dams case [14] clearly
established the Constitutional power of the Commonwealth, under the external
affairs power, to intervene through legislation or regulation to protect
and preserve areas listed as World Heritage areas. Richardson v Forestry
Commission [15] extended
the result in the Dams case and held that the Commonwealth can
take whatever interim action is reasonably necessary to protect and preserve
an area that has been nominated for World Heritage listing.
4.15 A number of other heads of power are also available to the Commonwealth
in order to protect and preserve World Heritage areas. The trade and commerce
power (s 51(i)) could be invoked to prevent the export of resources taken
from World Heritage areas. [16] The corporations
power (s 51(xx) could be employed to prevent domestic trading or financial
corporations or foreign corporations from carrying out activities in a
World Heritage area. [17] The race power (s
51(xxiv)) could be used to support a law protecting World Heritage areas
of significance to Aboriginal people. [18]
The power over Commonwealth places and Territories (s 122) and the fisheries
power (s 51(x)) would also support Commonwealth regulation of World Heritage.
Fear of Devolution of Commonwealth Powers
4.16 A number of submissions expressed a general concern that “State
rights” are allowed to override the Commonwealth Government to prevent
adequate environmental protection of World Heritage areas. As Mr H M Haenke
of New South Wales put it:
We believe steps should be taken to guarantee that:
- The Commonwealth does not continue to hand over responsibility for
World Heritage areas to State Governments;
- Shark Bay, WA, is protected from oil drilling;
- No uranium mining is allowed in Kakadu;
- States' rights are not allowed to take precedence over the protection
of the environment, either in World Heritage areas, or in any other
part of the continent. [19]
4.17 The Marine Education Society of Australasia drew the Committee's
attention to a number of World Heritage marine and coastal areas where
they thought the Commonwealth Government had failed to use its powers
to protect the marine environment. These included Shark Bay, the Daintree,
the Great Barrier Reef, North Stradbroke Island, and Eastern Cape York
Peninsula. The Society concluded that although there is legislation to
protect the marine and coastal areas in most of these regions, `unfortunately,
the Commonwealth has given into State demands'. The Society objected to
this approach arguing that `the good of the whole of the Australian environment
should outweigh the demands of individual states'. [20]
4.18 The Australian Coral Reef Society pointed to examples of conflict
and rivalry between State agencies in arguing that overall Commonwealth
control provided better outcomes:
We watch with dismay the lack of implementation by NSW of a Plan of Management
for the Lord Howe Island and its associated coral reefs which have been
declared a World Heritage Area. A plan was developed by NSW Fisheries
in the 1970's for the reef areas - it has still not been implemented largely
due to the friction between National Parks and Fisheries within NSW. [21]
4.19 The Society suggested that regulatory approaches employed by the
Commonwealth for the Great Barrier Marine Park in North Queensland would
provide a suitable model for application in other reef areas such as in
New South Wales:
We would like to see a continued reliance on Commonwealth Environment
Powers especially as it relates to World Heritage Areas, Australian Heritage
Commission and the EP(IP) Act. We would like to see the model established
for managing the Great Barrier Marine Park extended to other coral reef
ecosystems. In this model primary responsibility for policy and planning
rests with the Commonwealth, while day to day management is carried out
by the State under joint funding arrangements. We believe that a comparison
of the policies and achievements with respect to managing and conserving
coral reefs and other coastal areas suggests that the Commonwealth has
demonstrated a higher level of commitment and achievement than the states.
[22]
4.20 The view was also put forward that Commonwealth control over World
Heritage areas would provide a remedy to the problem of State Governments
generally giving priority to short-term economic interests to the detriment
of longer-term ecosystem values:
The Federal Government should be invested with total power to stop the
destruction of World Heritage Areas, as the State Governments obviously
do not care what happens to them. Protecting World Heritage Areas is possible
- the Fraser Government stopped oil drilling on the Great Barrier Reef;
and the Hawke Government prevented the damming of the Franklin River.
The argument of “states' rights” is only valid if short-term
economic advantage is deemed more important than protecting irreplaceable
ecosystems. It would be a disaster to give the States a veto over World
Heritage nominations. [23]
4.21 A similar point was made by Mr D MacDonald:
The effect of the Federal Government's abrogation of its powers to protect
World Heritage and National Parks values from inappropriate development
and in allowing the State Governments to have these powers along with
proposed rights to veto future World Heritage nominations appears to fly
in the face of responsibility. Each State Government has and will always
have a different set of environmental values even down to the need for
Impact statements. Decisions such as Hinchinbrook (Q) Coongie Lakes (S.A)
Port Lillias (V) Shark Bay (W.A) Jabiluka (N.T) Mt. McCall Rd. (Tas) all
will impact upon World Heritage areas or potential Heritage areas. [24]
A role for State Governments in World Heritage protection
4.22 The dominant view in submission and evidence was that the Commonwealth
Government should take primary responsibility for World Heritage protection.
However, some submissions nonetheless recognised that there is an important
subsidiary role for the States to play:
The role of the States in World Heritage management is of vital importance
given the Constitutional federal mix in Australia. However the role must
be that of a manager providing management in accord with the Convention.
It must equate at least with that of the Commonwealth. [25]
4.23 The difficult issue was not whether State or local governments had
a role to play but rather one of coordinating environmental laws, policies
and approaches across State jurisdictions to the satisfaction of those
community groups committed to ecologically sustainable development.
4.24 In the absence of co-ordination, most submissions advocated an approach
in which the Commonwealth would have the power to override decisions taken
by the other tiers of government:
The Commonwealth has a fundamental and necessary role to play in protecting
environmental and heritage values of national and international significance.
It is imperative that they have the necessary power to override inappropriate
decisions that threaten to destroy these areas so that they can be adequately
protected. Some Governments repeatedly demonstrated their inability to
protect these sites… .Areas declared as National Parks, National
Estate Areas or areas covered by international treaties and conventions
should be governed by consistent Commonwealth powers across Australia
so that they are afforded a uniform level of protection that is appropriate
to their level of significance. These levels of protection must be increased
so that there are no loopholes to circumvent these powers (eg “in
the national interest”). [26]
Recommendation 7
The Commonwealth should acknowledge that it has ultimate responsibility
for the safekeeping of World Heritage areas. The Commonwealth should exercise
primary legal control over the protection, preservation and management
of these areas.
Commonwealth Legislative Protection of World Heritage Areas
4.25 There are several pieces of Commonwealth legislation that have an
impact on, or relate to, the implementation of the World Heritage Convention.
These are:
Environmental Protection (Impact of Proposals) Act 1974
Australian Heritage Commission Act 1975
World Heritage Properties Conservation Act 1983
Great Barrier Reef Marine Park Act 1975
National Parks and Wildlife Conservation Act 1975
Wet Tropics of Queensland World Heritage Area Conservation Act 1994
.
4.26 The Committee notes that a number of submissions highlighted that
none of these laws, either separately or together, provides for a coherent
and unified management regime for the "identification, protection,
conservation, presentation and transmission to future generations of [World]
heritage" as required by Article 4 of the World Heritage Convention.
4.27 The World Heritage Properties Conservation Act 1983, for
example, was enacted in response to a specific threat to the Southwest
Tasmanian Wilderness World Heritage area. The Act does not provide the
Commonwealth Government with the general responsibility to protect and
preserve World Heritage properties, nor does it control management activities
in World Heritage areas. According to some commentators, the Act `can
generally only be used in an ad hoc reactive manner to protect World Heritage
property, rather than as the basis for proactive management'. [27]
4.28 A number of submissions called for substantial amendments to the
Act to provide better protection for World Heritage area and a central
management role for the Commonwealth.
4.29 For example, Mr David Haigh, Senior Lecturer in Law at James Cook
University, stated that although in his view, this Act is `a vital tool
in ensuring World Heritage protection in Australia', it is `a blunt tool',
and `requires strengthening to ensure that it properly implements Australia's
Convention obligations'. Mr Haigh offered a number of suggestions for
improving the Act, including:
- A non-discretionary statutory duty on the part of the Minister to
seek a Proclamation whenever a threat exists to World Heritage.
- The right of third parties to seek through a Court a Writ directing
the Minister to refer the matter to the Governor General.
- A requirement that Ministerial consent must include specific details
of all management agreements with the States.
- The preservation of existing third party rights, with the additional
right to have merits review of the Minister's decision. [28]
4.30 The Committee notes that the Minister for the Environment and Heritage
issued a Commonwealth consultation paper on A National Strategy for Australia's
Heritage Places in April 1999. Nothing contained in the consultation paper,
however, indicates an intention on the part of Government to strengthen
Commonwealth laws for the identification, protection and preservation
of World Heritage.
4.31 It is the view of the Committee that the Commonwealth's existing
legislative framework for the protection and preservation of World Heritage
is insufficient. Given Australia's international obligations under the
World Heritage Convention, it is incumbent on the Commonwealth to ensure
compliance. The Committee considers that the Commonwealth has ample Constitutional
power to enact comprehensive national legislation to provide certainty
and uniformity in the protection, preservation and management of World
Heritage across Australia. The Committee is of the view that the Commonwealth
should embark on a reform of its existing legislative arrangements with
a view to strengthening them and making them more complete.
Recommendation 8
The Commonwealth should strengthen its statutory framework for the
identification and protection of World Heritage. The legislation should
provide a comprehensive national regime.
Nomination of World Heritage areas
4.32 The Committee notes that under Schedule 8 to the 1992 Intergovernmental
Agreement on the Environment (IGEA) the Commonwealth is obliged to
consult the States before proposing world heritage listings. However,
nothing in the IGEA prevents the Commonwealth for making a unilateral
nomination in the event of disagreement.
4.33 The Peak Environmental Enterprises and Conservation Centre of Australia
argued in its submission that the Commonwealth Government has failed to
take a leadership role in terms of its responsibilities for nominations
under the World Heritage Convention. For example, the Centre claimed that:
Under the World Heritage Convention, the Commonwealth is supposed to
submit an indicative list of potential world heritage sites … so
far nothing other than a list of nominated sites has been submitted to
the World Heritage Committee… there are no doubts about the Commonwealth's
powers to submit the list so that what this clearly represents is a lack
of political will and the ability to provide leadership. [29]
4.34 Taking the opposing view, the National Association of Forest Industries
(NAFI) suggested that current arrangements for the nomination of areas
for World Heritage protection place too much power in the hands of the
Commonwealth Government, which can act unilaterally to declare World Heritage
areas. In NAFI's view, there is insufficient involvement in World Heritage
processes by state and territory governments, and by other stakeholders,
including owners of private property (unlike some countries, Australia
does not as a matter of policy limit world heritage nominations to national
parks of comparable protected areas: Australia's world heritage areas
include off-park land and private land). [30]
4.35 One proposal suggested that legislative recognition should be given
to the right of members of the community to nominate a place for listing
to be considered by Commonwealth and State Governments. The Committee
understands that this nomination process would operate in a similar fashion
to that provided for public nominations to list endangered species under
the Endangered Species Protection Act 1992 and envisioned under
the Environment Protection and Biodiversity Conservation Bill 1998.
[31]
Case Study: The Blue Mountains
4.36 The need for the preparation of management plans for World Heritage
areas prior to their nomination is made clear in the IGAE which states
(Schedule 8, paragraph 5):
Arrangements for the management of a property will be determined as far
as practicable prior to the nomination. [32]
4.37 The Blue Mountains Conservation Society Inc. made a case to the
Committee for effective preparation to be undertaken for possible World
Heritage listing of the Blue Mountains area. The Society pointed to the
need for adequate species control programs and land use regulations to
protect the area from further degradation:
Since the urban areas of the Blue Mountains are located on the ridge
tops, and are surrounded by the National Park areas below, the protection
of the National Park requires a number of strong strategies to halt further
degradation:
Adequately vegetated buffers to all creeklines, in order that clean water
only, free of silt, nutrients and weed seeds, enters National Park,
Exclusion of all known or potentially invasive non-indigenous plants
from all nearby areas (eg all urban areas within 5 km of a Park boundary
or a watercourse leading into the Park), and
Exclusion of all non-indigenous animals within a defined perimeter of
the Park boundary unless permitted by regulation (eg cats kept wholly
indoors). [33]
4.38 The Blue Mountains Conservation Society Inc recognised that these
matters were primarily the responsibility of local government. However,
the Society claimed that the Blue Mountains City Council `has to date
been unwilling to implement any of these strategies'. This Society also
suggested that there was a lack of will by the State Government in controlling
noxious weeds, and considered this to require Commonwealth intervention.
[34]
4.39 The Committee visited the area on Friday 19 December 1997 with representatives
of the Blue Mountains Conservation Society and the Director of the Colong
Foundation for Wilderness in Blaxland.
4.40 They pointed out that the Blue Mountains area demanded special consideration
because it was unique in its juxtaposition of wilderness (with a World
Heritage listing then under consideration for the Blue Mountains National
Park) and urban development.
4.41 The Committee was shown examples that highlight the importance of
managing the impact of all urban development on the adjacent national
park. One of the areas visited (and zoned for development) was the habitat
of the rare red-crowned toadlet. Concern was expressed that the Blue Mountains
City Council may not have taken into consideration the impact of the proposed
development on the rare toadlets.
4.42 Other issues such as fire management and tourism management were
also discussed as the Committee visited sites at Wentworth Falls and Sublime
Point. In view of a possible World heritage listing, local conservation
groups advocated a `buffer' zone between the national park and the urban
areas adjoining it to facilitate environmentally sustainable management
of the park.
4.43 Concern was expressed to the Committee about governmental delays
(both Commonwealth and State) in furthering the cause of World Heritage
Listing. However, on 25 June 1998 the Minister for the Environment,
Senator Hill, announced that the nomination of the Blue Mountains for
world heritage listing, prepared co-operatively by the NSW and Commonwealth
governments after four years of research, had been finalised and sent
to the World Heritage Committee in Paris. [35]
4.44 In light of the submissions and evidence, the Committee considers
that the Commonwealth should undertake to pursue proposed World Heritage
nominations on their merits having regard to the heritage value of the
places concerned. While the Committee believes that consultation with
State Governments over nominations should continue, it further believe
that the Commonwealth should not allow the States an effective veto over
proposed World Heritage listings.
4.45 The Committee considers that Australia's obligations under the World
Heritage Convention to identify and protect World Heritage require that
the Commonwealth be able to nominate World Heritage unilaterally in the
event of disagreement with States. If it were otherwise, a single State
could incur state responsibility on the part of the whole of Australia.
4.46 As discussed in more detail below, the Committee also strongly recognises
the importance of public participation in environmental decision-making.
The Committee considers that the right of public nomination would accord
with Australia's commitment to Principle 10 of the Rio Declaration
on Environment and Development [36]
as well as Chapter 32 of the National Strategy for Ecologically Sustainable
Development.
Recommendation 9
The Commonwealth should continue to consult with States in order to
obtain their agreement on nominations to the World Heritage List. In the
event of disagreement, the Commonwealth should retain its power to make
unilateral nominations. The Commonwealth should provide the ability for
interested members of the public to nominate a property for listing to
be considered by Commonwealth and relevant State Governments.
Administration and Management of World Heritage areas generally
4.47 A large number of submissions to the present inquiry expressed concerns
with the existing arrangements for the management of World Heritage areas.
4.48 The Peak Environmental Enterprises and Conservation Centre of Australia
was critical of the Commonwealth for allegedly facilitating damage to
forests by allowing access for woodchipping:
The failure of the Commonwealth to process world heritage nominations
where world heritage values have been confirmed by official studies set
up and paid for by the Commonwealth (such as the Australian Alps and adjacent
areas) is another indictment of its poor leadership qualities. At present
it is doing everything within its powers to stretch out the assessments
of the eucalypt forests so that foreign woodchip interests can obtain
long term access to timber resources regardless of the damage this is
causing to world heritage values. [37]
4.49 Other submissions argued that State governments had tended to give
priority to economic or commercial interests, to the neglect of environmental
considerations in approving development in World Heritage areas. [38]
4.50 Mr Mervyn Farley of Queensland mentioned decisions relating to the
development at Port Hinchinbrook, and to commercial and recreational fishing
in a World Heritage designated area of the Great Barrier Marine Park,
as examples of what he regarded as a lack of Government commitment to
the protection of World Heritage areas. He called for `a community advisory
group to review all proposals of this nature before any decisions to implement
changes to designated world heritage'. [39]
He also saw a need for a Federal Government policy of control over World
Heritage national parks.
4.51 In evidence to the Committee the Australian Conservation Foundation
expressed their concern that the COAG Review of Commonwealth-State Roles
and Responsibilities for the Environment was supporting a process wherein
Commonwealth, State and local governments could pursue agreements that
would allow for States to have the final say over development proposals
in World Heritage areas. The ACF argued that the Commonwealth Government
needed to develop national guidelines for World Heritage management to
avoid policy in that area becoming determined by political expediency
rather than by conservation priorities:
The Commonwealth government's role in this should really be to set some
national guidelines about what you can and cannot do in World Heritage
areas. If these are World Heritage areas, then they have gone through
a very stringent process, meeting very high criteria that make them of
international standard, as their name suggests. [40]
4.52 In the ACF's view, clear guidelines would be of benefit to environmentalists
and industry alike:
Unless those plans very clearly articulate what is acceptable in those
areas and what is not and unless those fundamentals are specified as a
set of national guidelines, it will just go all over the place. We will
be back into this present very uncertain situation where we have issues
being decided basically on a case by case basis, depending on the political
climate of the time. That is certainly no good for the environment. I
would not think it would be terribly good for industry interests either
because they are not being provided with any certainty. They are not getting
a clear idea of what is possible, what is likely to go ahead and what
is not likely to go ahead in those areas. The detail is all-important.
[41]
4.53 The Centre for Natural Resources Law and Policy argued that there
is insufficient emphasis by the Commonwealth on the management
of World Heritage areas, as distinct from planning and assessment
processes under the various pieces of relevant legislation:
It is important to distinguish between the Commonwealth role at the level
of strategic planning and its role in relation to the assessment of particular
development proposals. The Environment Protection (Impact of Proposals)
Act 1974 attaches on an ad hoc basis to particular development proposals
that happen to have some Commonwealth nexus. While the register of the
National Estate is the product of strategic planning, listing does not
have any effect in terms of ongoing management. It does not restrict the
activities of the States or private individuals unless they require Commonwealth
approval for their activities. It simply imposes environmental assessment
responsibilities on Commonwealth instrumentalities in relation to proposed
potentially damaging activities. The World Heritage Properties Conservation
Act 1983 (WHPCA) is intended as a “last resort” when threats
to World Heritage areas cannot be addressed by State Government mechanisms.
Once again, identification of a property as part of the world heritage
following an elaborate strategic assessment exercise means nothing in
terms of management. [42]
4.54 The Committee considers that ongoing supervision by the Commonwealth
is required in the management of World Heritage areas. The Committee believes
that there is a need for nationally consistent management plans for World
Heritage areas based on national standards.
Recommendation 10
The Commonwealth should not devolve responsibility for management
of World Heritage areas to the States without ongoing supervision and
reporting requirements.
Recommendation 11
The Commonwealth should establish binding national management principles
to effectively protect and preserve World Heritage areas. These principles
should provide the basis for mandatory management plans for all Australian
World Heritage areas.
An ecosystem approach to management and protection
4.55 The Centre for Natural Resources Law and Policy also advocated an
integrated ecosystem approach to management of World Heritage that would
have as its focus the management and conservation of biodiversity. To
this end, the Centre suggested the Biodiversity Group within Environment
Australia as an appropriate locus for the government's activities in implementing
the World Heritage Convention:
Effective implementation of World Heritage requires integrated procedures,
drawing on processes and expertise that presumably would be found within
the Biodiversity Group. Otherwise there is a danger that the Convention
could exacerbate existing fragmentation in environmental management. The
World Heritage sites cannot be managed in a stand-alone fashion. Any focus
on the iconic value of the site must be balanced with consideration of
the ecosystems that sustain them. [43]
4.56 In order to facilitate effective management and protection of World
Heritage areas, David Haigh recommended that the World Heritage Properties
Conservation Act 1983 should be amended to include a provision stating
that the Act applies to the Buffer Zone around the core World Heritage
area. [44]
4.57 Submissions were also critical of the failure of the assessment
processes to incorporate an ecosystem approach. Mr Peter Sims used the
example of the Tasmania-Commonwealth Regional Forest Agreement to illustrate
that although these areas were assessed both under the RFA process and
in terms of World Heritage values, the assessments failed to consider
these areas as whole ecosystems, including non-forest wilderness areas
as well as forest areas.
Many people stressed the point that forests cannot be assessed purely
as floristic `islands', isolated and ecologically independent. This Report
(the World Heritage Report: Background Report part I to the Joint Tasmania-Commonwealth
Regional Forest Agreement (RFA) Steering Committee) therefore failed,
by excluding non-forested areas, particularly the non-forest wilderness
areas in the Tarkine, south of Macquarie Harbour, as well as the Lake
Lea/Vale of Belvoir areas in Tasmania.
4.58 The Committee notes that the Operational Guidelines to the World
Heritage Convention require a buffer zone approach to the management and
protection of World Heritage. The Committee considers that this sort of
holistic approach should be employed in the management and protection
of World Heritage.
Recommendation 12
The Government should amend the World Heritage Properties
Conservation Act 1983 to ensure that the Act applies to a defined
and adequate buffer zone around World Heritage properties which takes
into account the natural ecosystem to which the World Heritage listed
area belongs.
`Multiple use' in World Heritage Areas
4.59 The ACF argued for the need to maintain fully protected areas of
high natural conservation value by pointing out that, “the proportion
of land area fully protected for conservation purposes in Australia is,
at best, only 4.2 percent” and that these areas already make a valuable
contribution to the general well-being of the environment, and hence,
of the economy and bring many benefits to the country:
The aim of National Parks, World Heritage Areas, wilderness reserves,
and conservation areas is to maintain biological diversity and protect
ecological integrity. Species diversity and healthy ecosystems provide
many essential services. These include the regulation of water cycles,
the protection of catchments, the provision of clean water, the breakdown
of pollutants, nutrient cycling, maintenance of soil fertility, and regulation
of climatic systems. This is not to mention, of course, productive and
consumptive uses of protected areas such as recreation, tourism, education,
research, and the habitat protection of commercially valuable species.
[45]
4.60 The ACF argued that the present system of reserves is consistently
undermined by `multiple land use' approaches that support activities such
as oil and gas exploration and mining, and allow excisions and boundary
changes detrimental to sound conservation:
Exploration and mining have been demonstrated to have impacts which are
incompatible with the protection of high conservation values. Identified
mineral deposits and proposed mining operations exercise a pre-emptive
influence on land use planning generally, and the dedication of protected
areas in particular.
If multiple and sequential use policies are to be applied to terrestrial
and marine protected areas, then protected areas will have to be much
larger in order to achieve conservation outcomes. Until the mining industry
openly states its intention not to access World Heritage Areas, National
Parks and other conservation reserves for mining and exploration, then
it cannot credibly argue for the application of `multiple use' concepts
to future land use decision-making. [46]
4.61 The ACF proposed a series of recommendations aimed at improving
government commitment to protecting areas of high conservation value:
Governments, through the Council of Australian Governments, to prohibit
mining, exploration and other intrusive development activities in protected
areas;
The establishment of a comprehensive, representative and adequate national
reserve system by 2000;
The introduction of a national wilderness protection program, including
Commonwealth wilderness protection legislation; and
The Federal Government to maintain and, where necessary, use its external
affairs powers to protect high conservation value areas from exploration,
mining and other resource development activities;
Limiting new areas created under the National Reserve System Program
to those in IUCN categories I-IV;
Developing and adopting nationally consistent standards for the management
of protected areas to ensure the survival in perpetuity;
Adopting nationally consistent standards for the conduct of research
in environmentally sensitive and/or protected areas (such as those currently
under development by an ASTEC Working Group). [47]
4.62 The Coongie Lakes in the north east of South Australia were mentioned
in a number of submissions as being an area where the concept of “multiple
use” is threatening the proper conservation of the natural values
of a World Heritage area. [48] This area of
South Australia is listed on the National Estate, the Ramsar Convention
and the World Heritage Convention. It is an ecological system known as
a `transient desert wetlands', which varies between wetlands, when subject
to floods from the Cooper Creek, and saltpans at other times. [49]
4.63 The area is subject to petroleum exploration by Santos Ltd, and
possible future drilling. The Nature Conservation Society of South Australia
believes the area would be better able to be protected if it was designated
a `proper reserve - a no-take zone at all'. The Society argued in evidence
that this would be a possible solution to the problems that arise with
multiple-use areas:
This is very difficult because the Innamincka Reserve, which the Coongie
Lake is within, is actually a multiple use reserve. The problem with multiple
use reserves is that often the uses within the reserves are incompatible
and, in addition, you have the problem where there is no take, as such.
You have multiple use within and around the supposedly no-take zone. We
would like to actually ensure that a no-take zone is a no-take zone and
if any multiple use is to occur, it is to occur around the no-take zone
to safeguard that area. Ideally we would like it to be a reserve. [50]
4.64 The Nature Conservation Society of South Australia also drew the
Committee's attention to the fact that there is no requirement in South
Australia that a proponent prepare an environmental impact statement before
mining at Coongie Lakes. [51]
4.65 The Committee notes that international "best practice"
standards prohibit environmentally destructive activities in World Heritage
areas of natural value. World Heritage areas fall into a Category III
protected area under the IUCN Guidelines for Protected Area Management
Categories. The Commonwealth has publicly committed to the IUCN Guidelines.
[52] The Guidelines provide objectives of management
for Category III protected areas, including the elimination and thereafter
prevention of exploitation or occupation of the area.
Recommendation 13
The Commonwealth should entrench the IUCN Guidelines for
Protected Area Management Categories in national legislation.
In connection with World Heritage Areas the Commonwealth should ensure
that exploitation and occupation of such areas is eliminated and prevented.
The Precautionary Principle and World Heritage Management
4.66 Some submissions deplored the government's failure to apply the
precautionary principle, as incorporated in the IGAE, to the protection
of World Heritage areas. Mr Grant Jay for example questioned whether that
principle has any real meaning, or whether it is merely rhetoric.
Regulations to provide mechanism to the agreement are non-existent, 5
years on and there are still no specific mechanisms in place to assure
the compliance to the IGAE. Party politics aside for the moment, the true
purpose and intent of the IGAE is somewhat of a mystery.
I do not think that the precautionary principle in the form adopted by
the 1992 Intergovernmental Agreement (nine years after the enactment of
the World Heritage Act), is a relevant consideration that the Minister
is bound to take into account in exercising the powers conferred by the
World Heritage Act. [53]
4.67 One witness from Tasmania, Mr Sims, argued that in cases where,
as he believed was the case in the assessment of the Tasmanian rainforests,
the World Heritage Expert Panel notes a need for further assessment, it
becomes even more important to apply the precautionary principle to ensure
that all possible environmental damage is prevented:
What happens to the areas that are identified as worthy of further assessment
for World Heritage criteria?
There needs to be an understanding that such areas are a signal for `heritage
vandalism' that has occurred in the past and could result in intentional
damage with bulldozers, roading, fire, logging, mining, poaching, tourism,
grazing, recreation activities etc. - anything that may impair the natural
and/or cultural values of these areas. An exclusion on all such activities
is needed until the identified areas have been finally assessed. [54]
4.68 The Committee notes that the Commonwealth has the power to apply
a precautionary approach to World Heritage. The High Court, in Richardson
v Forestry Commission, [55] held
that the Commonwealth has the power to take interim protective measures
for the purpose of determining whether it has an obligation to protect
and preserve World Heritage under the World Heritage Convention.
4.69 The Committee believes it is important that potential World Heritage
areas are properly and adequately assessed and that during the assessment
process nothing is done that would irreparably harm potential World Heritage.
Recommendation 14
The Commonwealth should prohibit any activity that would irreparably
harm potential World Heritage areas within Australia at any time prior
to completion of the assessment process.
Assessment of World Heritage values
4.70 The National Association of Forest Industries (NAFI) compared Australia's
World Heritage process with that in the United States, Canada, the UK
and New Zealand and calls for private property owners' and community interests
to be taken into account in nominations for World Heritage areas as in
those other countries:
- Private property owners and those with an interest in property must
concur in writing before a World Heritage nomination proceeds;
- Properties are listed on an indicative inventory, before nomination
consideration;
- World Heritage nominations must have community support
- Nominations only occur where properties are protected and management
plans are in place. [56]
4.71 The Committee observes that individuals would have the potential
power to put Australia in breach of it obligations under the World Heritage
Convention if written permission from a property owner was required before
nomination. The same would be true of a requirement of community support
for an unpopular nomination.
4.72 The Committee also highlights that as far as practicable preparation
of management plans are required under Schedule 8 of the IGEA prior to
nomination. However, be that as it may, such a requirement in no way diminishes
the power of the Commonwealth to provide interim protection to potential
World Heritage areas at any time before listing under the Convention.
The Regional Forest Agreement process
4.73 A number of groups addressed the Regional Forest Agreement (RFA)
process in their submissions. The Regional Forest Agreement Bill 1998
has since been the subject of an inquiry by the Senate Rural and Regional
Affairs Committee so this issue will only be commented upon briefly in
this report. It is considered in this Chapter in connection with asserted
deficiencies in the RFA assessment process and in Chapter 5 in connection
with the Commonwealth's power to impose export controls.
4.74 Many of those submissions who addressed the issue were disappointed
that when forests were being assessed for the purposes of the Forest Agreement,
World Heritage listing was not also considered. A group of East Gippsland
residents expressed their disappointment at this failure:
The RFA has failed to investigate World Heritage values outside the reserve
system despite there being clear evidence to show this region could meet
the criteria necessary for listing. [57]
4.75 Environment groups said that there had allegedly been a commitment
made by governments during the RFA process for East Gippsland to include
World Heritage assessment in the process. They were therefore disappointed
at the outcome. The Victorian National Parks Association Inc (VNPA) observed
that there had been a lack of World Heritage assessment in the East Gippsland
RFA process, and suggested that as a consequence, that RFA was in breach
of sections of the World Heritage Convention. According to the VNPA the
East Gippsland RFA was concluded before there had been any assessment
of World Heritage values for the region:
This assessment is not expected to be completed for some time. We are
appalled by the clear breach of promise with the public which has occurred
with the signing of the East Gippsland RFA before the assessment of heritage
values had been completed and consider this to be an abrogation of the
purpose of the World Heritage Act. We also regard these actions as a breach
of Articles 4, 5 and 11 of [the] World Heritage Convention. [58]
4.76 The Committee believes that it is inappropriate to exempt the RFA
process from World Heritage Assessment. In order to ensure that Australia
meets its obligations under the World Heritage Convention, it is important
that the assessment of World Heritage values take place at the same time
as assessment takes place in connection with the RFA process.
Recommendation 15
The Commonwealth should ensure that an assessment of World Heritage
values is required in the early stages of the Regional Forests Agreement
(RFA) process.
Implementing the Ramsar Convention
4.77 The Convention on Wetlands of International Importance especially
as Waterfowl Habitat (the `Ramsar Convention') was adopted at Ramsar
in Iran in February 1971. Australia was among the first countries to ratify
this convention. The Ramsar Convention aims to provide for the conservation
and sustainable management of wetlands, considered to be one of habitats
most threatened. Wetlands are defined under Article 1.1 as:
Areas of marsh, fen, peatland or water, whether natural or artificial,
permanent or temporary, with water that is static or flowing, fresh, brackish
or salt, including areas of marine water the depth of which at low tide
does not exceed six metres.
4.78 The Committee notes that Commonwealth can rely on all the same extensive
powers set out in paragraphs 1.11 and 1.12 of Chapter Two, in relation
to the World Heritage Convention, in fully implementing the Ramsar Convention.
4.79 The Convention imposes a number of obligations on the parties to
conserve and wetlands in their territory. The Convention also allows parties
to designate wetlands within their territory for inclusion on the List
of Wetlands of International Importance. As of 13 April 1999, Australia
has 49 wetlands identified on the List. [59]
4.80 The Wetlands, Waterways and Waterbirds Unit of Environment Australia's
Biodiversity Group is currently responsible for implementing the Ramsar
Convention in Australia. It does so under its National Wetlands Program,
which is one of several Environment Australia programs funded under the
Natural Heritage Trust. Australia hosted the Sixth Conference of the Contracting
Parties to the Ramsar Convention in Brisbane on 19-27 March 1996.
4.81 While the Convention does not impose an obligation on the parties
to preserve and protect wetlands, it does impose a duty to conserve wetland
reserves and ensure their wise use.
4.82 In February 1997 the Minister for the Environment, Senator Hill
launched the Wetlands Policy of the Commonwealth of Australia.
This policy, developed within the broad framework of the National Strategy
for Ecologically Sustainable Development, seeks to `advance wetland
conservation as an integral part of efficient and environmentally responsible
delivery of Commonwealth services'. [60]
4.83 Although it refers to the Ramsar Convention, the Wetlands Policy
does not abide by all the requirements of that convention. Concern was
expressed in many submissions that the Government has not adhered to the
Ramsar Convention and has allowed development to occur in areas designated
as internationally recognised Ramsar wetlands.
4.84 For example, the Westernport and Peninsula Protection Council Inc
referred to proposals by Shell and Mobil in 1992 to develop an oil importation
facility at Crib Point in Westernport Bay, Victoria. According to the
Westernport and Peninsula Protection Council, both the Commonwealth, and
State governments refused to conduct an environmental impact assessment
of the proposal, despite the area being a Ramsar listed protected wetland
site. [61]
4.85 A large number of submissions argued that responsibility for managing
sites listed under the Ramsar Convention should reside with the Commonwealth
Government and not State governments. These submissions argued that Commonwealth
control over Ramsar sites is necessary, because these areas comprise ecological
zones, habitats and species (such as migratory birds) whose protection
transcends local State interests, and are matters requiring a Commonwealth
focus.
4.86 This view is summarised in a submission by Bird Lovers of Black
Sugarloaf in Tasmania:
In 1971 the Ramsar Convention, one of the most crucial international
environmental treaties was signed by 18 nations to protect wetlands of
international significance. Ramsar sites in each state are of great importance
to breeding birds and should not be controlled by state governments, who
with their narrow interests, should not be made responsible for sites
with national and international significance. It is most important that
the Federal Government retains the powers to protect these important areas.
[62]
Point Lillias
4.87 Another Ramsar related issue that was the subject of many submissions,
was the 1996 decision by the Victorian Government to excise an area at
Point Lillias near Geelong from a Ramsar listed site (on the basis that
the development was in the urgent national interest), in order to relocate
a chemical storage facility from Coode Island in Melbourne's western region.
That decision was the focus of a considerable number of submissions protesting
that the Commonwealth Government, in failing to stop the Point Lillias
development, had abrogated its responsibilities under a range of international
treaties, including the Ramsar Convention. In her submission, a Geelong
resident. Ms Kathy Barker wrote:
I would like to question how, in the face of overwhelming local, national
and international opposition, and against the advice of the majority of
Federal cabinet departments, including his own department, the Federal
Environment Minister was able to sidestep no less than twelve treaties,
including the RAMSAR Treaty which protects wetlands of international importance,
in order to excise 20 ha of internationally protected, environmentally
sensitive wetland at Pt. Lillias, thus paving the way for the Victorian
Government to relocate Coode Island's Hazardous chemical storage facility
to Pt. Lillias. [63]
4.88 The City of Greater Geelong similarly held the view that the Point
Lillias decision was in breach of Australia's international treaty obligations.
It argued:
Senator Hill's approval to excise part of the Ramsar area is only the
second decision of its kind by an international signatory to this convention
and therefore does not enhance Australia's flagging international reputation
on environmental management issues. [64]
4.89 The Port Phillip Conservation Council also stated that:
The decision to excise areas protected under the Ramsar Treaty for the
purpose of a chemical storage facility is demonstrably not in the urgent
national interest. The Federal Government should not only have the power
but also the responsibility to ensure that the obligations and responsibilities
of international conventions and treaties are met. It should not have
been possible for the Point Lillias decision to have been taken. [65]
4.90 The proposal to relocate the Coode Island chemical storage facility
was the subject of an Environmental Effects Statement (EES) under the
Victorian legislation. In his submission, Mr Peter Loney argued that the
claim of `urgent national interest' that formed the basis for the Minister's
decision to allow the facility to be relocated to Point Lillias, and the
EES process, were both flawed. [66]
4.91 On 24 June 1997, the Victorian government announced that it had
abandoned the proposal to build a chemical storage facility at Point Lillias
after an independent panel report into the Environment Effects Statement.
[67]
4.92 The Committee believes that in order to meets it obligation under
the Ramsar Convention, the Commonwealth should ensure that Australia's
wetlands of international importance continued to be managed at a national
level.
4.93 The Committee is concerned that inadequate environmental assessment
or no environmental assessment is taking place in connection with proposed
developments or uses of listed wetland. The Committee believes that Australia's
obligation to conserve and wisely use wetlands covered by the Ramsar Convention
requires effective assessment before such developments or uses take place.
Recommendation 16
The Commonwealth should retain management responsibility for listed
Ramsar wetlands in order to ensure that its obligations under the Convention
are met.
Recommendation 17
The Government should make regulations under section 69 of the National
Parks and Wildlife Conservation Act 1975 to require Commonwealth
assessment and approval of all proposed developments and uses of listed
wetlands that are likely to have a significant impact on their environment.
Footnotes
[1] Department of Foreign Affairs and Trade,
Treaties Relating to the Environment and Conservation (July 1992)
[2] New South Wales v Commonwealth (1975)
135 CLR 337. An example of the use of this power is the Antarctic Treaty
(Environment Protection) Act 1980 (Cth)
[3] Commonwealth v Tasmania (1983) 158
CLR 1.
[4] As above
[5] Submission No 345 (Australian Conservation
Foundation), p 1751
[6] Submission No. 257 (Environmental Defender's
Office, NSW), p. 1110
[7] Id.
[8] Transcript of Evidence (Mr Donald Anton,
Environmental Defender's Office Ltd, Sydney), 18 December 1997.
[9] See in particular Arts. 6(a), 7(c), all
of Article 8, all of Article 10, Art. 11, all of Art. 14, all of Art.
15.
[10] See the Schedule accompanying the World
Heritage Properties Conservation Act 1983 (Cth).
[11] Parliament of the Commonwealth of Australia,
Managing Australia's World Heritage, House of Representatives Standing
Committee on Environment, Recreation and the Arts, October 1996, p. 1
[12] World Heritage Convention, Art. 6(6)(d).
[13] See World Heritage List, available on
the UNESCO web site at: < http://www.unesco.org/whc/nwhc/pages/sites/maplist/f_oceasia.htm>
[14] Commonwealth v Tasmania (1983)
158 CLR 1.
[15] (1988) 164 CLR 261.
[16] See Murphyores v Commonwealth (1976)
136 CLR 1.
[17] See Commonwealth vTasmania (1983)
136 CLR 1.
[18] See eg Aboriginal and Torres Strait
Islander Heritage Protection Act 1984.
[19] Submission No. 53 (Mr H M Haenke), p.293
[20] Submission No. 280 (Marine Education Society
of Australasia), p. 1271
[21] Submission No. 113 (Australian Coral Reef
Society), p. 472
[22] Submission No. 113 (Australian Coral Reef
Society), p. 472
[23] Submission No. 230 (Mr Andy Breaden),
p. 935
[24] Submission No. 54 (Mr D. MacDonald), p.295
[25] Submission No. 264 (Mr David Haigh), p.
1193
[26] Submission No. 79 (Mr R Irving), p. 365
[27] Ben Boer and Robert J. Fowler, The
Management of World Heritage Properties in Australia, Report to the
Department of the Environment, Sport and Territories, Part II, 1996, p.
36
[28] Submission No. 264 (Mr David Haigh), pp.
1192-1193
[29] Submission No. 88 (Peak Environment Enterprises
& Conservation Centre of Australia), p. 391
[30] Submission No 333 (National Association
of Forest Industries Ltd), p. 1575
[31] Submission No 257 (Environmental Defender's
Office Ltd), p 1124.
[32] Intergovernmental Agreement on the
Environment, May 1992, Schedule 8, p. 36
[33] Submission No. 281 (Blue Mountains Conservation
Society Inc), p. 1277
[34] Submission No. 281 (Blue Mountains Conservation
Society Inc), p. 1277
[35] Hill, the Hon. R, Blue Mountains nominated
for World Heritage List, press release 25 June 1998
[36] Annex I, Report of the United Nations
Conference on Environment and Development, UN Doc A/CONF.151/26/Rev.1
(Vol. I).
[37] Submission No 88 (Peak Environmental Enterprises
& Conservation Centre of Australia), p. 391
[38] Submission No. 190 (Ms Julie Kennelly),
p. 763
[39] Submission No. 13 (Mr Mervyn A. Farley),
p. 100
[40] Transcript of Evidence (Mr Mark Horstman,
ACF), 15 September 1997, p. 10
[41] Transcript of Evidence (Mr Peter Wright,
ACF), 15 September 1997, p. 13
[42] Submission No. 234 (Centre for Natural
Resources Law and Policy, University of Wollongong), p. 968
[43] Submission No. 234 (Centre for Natural
Resources Law and Policy, University of Wollongong), p. 954
[44] Submission No 264 (David Haigh) pp 1192-93.
[45] Submission No. 345 (Australian Conservation
Foundation), p. 1760
[46] Submission No. 345 (Australian Conservation
Foundation), p. 1760
[47] Submission No. 345 (Australian Conservation
Foundation), p. 1760
[48] For example, Submission No. 167 (Nature
Conservation Society of South Australia Inc), p. 676
[49] Transcript of Evidence (Dr Christina Son,
Nature Conservation Society of South Australia Inc.), 15 July 1998, p.
421
[50] Transcript of Evidence (Dr Christina Son,
Nature Conservation Society of South Australia Inc), 15 July 1998, p.
421
[51] Submission No. 167 (Nature Conservation
Society of South Australia), p. 676
[52] See Consultation Paper on the Reform of
Commonwealth Environment Legislation (1998), p 22.
[53] Submission No. 287 (Mr Grant A Jay), p.
1307, 1310
[54] Submission No. 1408 (Mr Peter Sims), p.
1412
[55] (1988) 164 CLR 261
[56] Submission No. 333 (National Association
of Forest Industries Ltd), p. 1575
[57] Submission No. 142 (Concerned Residents
of East Gippsland Inc), p. 555
[58] Submission No. 303 (Victorian National
Parks Association Inc.), p. 1430
[59] See List of Wetlands of International
Importance, available on the IUCN website at:< http://iucn.org/themes/ramsar/sitelist.pdf>
[60] Wetlands Policy of the Commonwealth
Government of Australia, January 1997, p.4
[61] Submission No. 44 (Westernport and Peninsula
Protection Council, Inc), p. 266
[62] Submission No. 210 (Bird Lovers of Black
Sugarloaf), p. 820
[63] Submission No. 87 (Ms Kathy Barker), p.
386
[64] Submission No. 110 (City of Greater Geelong),
p. 464
[65] Submission No. 83 (Port Phillip Conservation
Council, Inc., Victoria), p. 374
[66] Submission No. 108 (Mr Peter Loney, MLA,
Member for Geelong), p. 451ff
[67] Minister for Industry, Science and Technology
(Victoria) & Minister for Planning and Local Government, Press Release,
24 June 1997
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