House of Representatives Committees

Managing Australia's World Heritage

CHAPTER 2: THE WORLD HERITAGE CONVENTION AND THE COMMONWEALTH'S RESPONSIBILITIES

Introduction

2.1 Australia has been noted as a country that has done much to advance the protection of the world's natural heritage. New Zealander Mr Bing Lucas, a noted international conservation expert who has advised UNESCO on world heritage matters, told the Committee that:

Professor Trevor Atherton of Bond University, who like Mr Lucas has also worked for UNESCO, made a similar observation when he submitted that Australia 'enjoys a high international profile for the way in which it has implemented the World Heritage concept'. [2]

2.2 Mr Lucas has been involved in many nominations and assessments of proposed world heritage areas. He noted that, although Australia has achieved much, it also faces comparatively more challenges, in implementing the World Heritage Convention, because of the involvement of the Commonwealth and State Governments. The matters raised with the Committee during the course of the inquiry concerned the role of the Commonwealth, the balance of responsibility between the Commonwealth and the States, and the obligations created by the Convention.

2.3 The challenge of nominating and managing world heritage areas has raised some important problems in Australia which have erupted into controversial disputes between the Commonwealth and the States, based in part on political and legal arguments. These disputes have included some criticism of the implementation of the World Heritage Convention and the value of inscribing areas on the world heritage list.

2.4 A review of the problems associated with the implementation of the Convention in Australia found that the use of the Convention in internal political battles did not encourage community support nor enhance Australia's international reputation. Furthermore, the concept of world heritage had been discredited within Australia:

2.5 There is a considerable diversity of opinion about these matters and there is a range of joint Commonwealth/State agreements and arrangements for the management of individual world heritage areas in Australia. The nature and extent of the Commonwealth's role were threshold questions for the Committee in this inquiry and were closely associated with questions about the nature and extent of the Commonwealth's powers under the Constitution and the responsibilities of the Commonwealth in relation to the World Heritage Convention. The provisions of the Convention provide a starting point for the consideration of the role of the Commonwealth in the management of world heritage areas.

The World Heritage Convention

2.6 The Commonwealth's role in world heritage matters is derived from the duties and obligations created by the World Heritage Convention, as they are interpreted to apply to the Federal Government under the Commonwealth Constitution. As over 140 countries have ratified the Convention and, of these, over 80 have nominated sites for inclusion in the World Heritage List, DEST suggested that the Convention could be regarded as the most successful conservation strategy in the world.

Obligations created by the Convention

2.7 The aim of the Convention, according to DEST, is to encourage cooperation among States Parties to protect cultural and natural heritage which is recognised as being of such outstanding value that its conservation concerns all people. [4] The Convention does much more than encourage cooperation. It also imposes obligations on signatory States Parties.

2.8 The principal obligations imposed by the Convention are spelt out in Articles 4 and 5. They include, in Article 4, a duty to ensure the 'identification, protection, conservation, presentation and transmission to future generations' of natural and cultural heritage, as defined by the Convention, which occur in the territory of States Parties.

2.9 Article 5 sets out in more detail several obligations imposed on States Parties to ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated in its territory. States Parties are required, among other things, to:

DEST advised the Committee that States Parties are also strongly encouraged to improve their capacity to ensure adequate recording, documentation and information management for the conservation of significant sites. [5]

2.10 The Convention creates other duties, not all of which are directly related to the identification and protection of world heritage areas within a State Party's borders. Article 27 of the Convention requires States Parties to undertake education and information programs that will 'strengthen appreciation and respect by their peoples of the cultural and natural heritage' and to 'keep the public broadly informed of the dangers threatening this heritage and of activities carried on in pursuance of this Convention'. The Convention also provides for States Parties to contribute to the identification, protection and preservation of world heritage by contributing to the World Heritage Fund.

The nature of the obligations and duties created by the Convention

2.11 The provisions of international treaties and agreements are taken to impose obligations on acceding states, even though these obligations may not be as easily enforceable as domestic legislation. The Convention is expressed in a way that is 'fairly broad in order to impose general obligations and allow the States Parties flexibility in how they fulfil those obligations'. [6] The nature of the obligations created by the Convention are subject to some interpretation, and it is clearly a matter for individual States Parties to determine how the obligations will be discharged. The Convention, when referring to obligations and duties includes provisions such as:

2.12 As explained by DEST:

2.13 The Attorney-General's Department expressed a similar view in its submission to this Committee's previous inquiry into the proposal to drain and restore Lake Pedder:

2.14 There is little doubt that the Convention imposes binding obligations on Australia. The existence of these obligations was acknowledged in the second reading speech by the then Minister for Home Affairs and Environment when introducing the World Heritage Properties Conservation Bill in 1983:

2.15 The existence of these obligations was confirmed by a majority of the High Court in the Tasmanian Dams case. In this case the validity of Commonwealth legislation enacted to prevent the construction of a dam, that would have flooded part of the world heritage area in Tasmania, was challenged by the Tasmanian Government. Justice Mason found in his judgement on the Dams case that various articles in the Convention created clear obligations, even though it contained qualifications such as 'will do all that it can' and 'in so far as is possible, and as appropriate for each country':

2.16 Justice Mason found that the inclusion of the qualifications mentioned above would not have been necessary unless the Convention imposed an obligation:

2.17 There was little in the evidence presented to the Committee that countered the view that ratification of the Convention imposed obligations on Australia. The Australian Mining Industry Council (now the Minerals Council of Australia - MCA) referred to the provision in the Convention that the duty of ensuring the protection of world heritage areas belongs primarily to the States where such areas occur. It argued that this means that the obligation is a matter for individual States rather than the Commonwealth. [12] This view is contradicted by other evidence presented to the Committee and appears to be an erroneous and confused interpretation of the effect of international treaties. Clearly what the Convention is saying is that the duty of discharging the international obligation falls upon States that are party to the Convention. This is how the matter was determined by the High Court in Australia and there is no basis to argue that the Act is based on an incorrect interpretation of the Convention.

2.18 Following the Tasmanian Dams case, the powers of the Commonwealth in relation to world heritage matters were tested in two further cases before the High Court. In each case the High Court re-affirmed that the Convention created duties on Australia that could be carried out by the Commonwealth pursuant to the external affairs powers of the Constitution. [13] The unanimous view of the High Court in Queensland v Commonwealth 1989 was that listing of a property as world heritage by the World Heritage Committee was sufficient and conclusive to establish the international duty to protect and conserve that property. [14]

2.19 In accepting, albeit in a majority decision, that the Convention imposed obligations on Australia, the High Court noted in 1983 that these obligations could be discharged by either the Commonwealth, the States, or partly by both. The majority of the Court considered that, when the Parliament legislates to give effect to a treaty, it is for the Parliament to choose the means by which this is achieved. [15]

2.20 Two judicial observations highlight the flexibility and discretion allowed to States Parties. Justice Brennan said in relation to Articles 4 and 5 of the Convention that:

2.21 Justice Brennan also noted the discretion allowed in enacting legislation to protect world heritage areas:

2.22 The discretion available to signatory parties arises as a general matter of international law and applies notwithstanding the provision in Article 4 of the Convention that a party 'will do all it can' and to the 'utmost of its resources' to discharge the duties imposed upon it. [18]

2.23 The Convention, at Article 34(a), contains provisions that recognise that some States Parties may be federations:

2.24 This provision also specifically deals with the situation where the governments of constituent states of a federation are not obliged by constitutional arrangements to take action to protect world heritage. The Convention in this case simply obliges the federal authority to inform the states of the provisions of the Convention and make recommendations to them about its implementation. In the Franklin Dam case the High Court found that this provision 'had no effect on the Commonwealth's power to make laws to give effect to Australia's obligations under the Convention'. A review of world heritage legislative and administrative measures prepared for DEST by two of Australia's leading academic environmental lawyers noted that Australia had not consistently recommended action to the States, as envisaged by section 34 of the Convention. However they suggested that cooperative agreements on environmental matters and the drive for consistency in arrangements created a need for more emphasis on joint Commonwealth/State management arrangements, which can be expressed in memoranda of understanding and in complementary legislation. [19]

2.25 Article 34(a) of the Convention, together with the Australian Constitution, provides that the responsibility for ensuring that the Convention is implemented in Australia rests with the Commonwealth Government, regardless of whatever domestic arrangements are put in place for the implementation of the Convention. It does not preclude a role for the States. In the Tasmanian Dams case Justice Brennan noted that:

2.26 The obligation to conserve and protect world heritage areas may, in some circumstances, arise before an area is actually inscribed on the world heritage list. The Convention creates an obligation to identify world heritage areas. Boer and Fowler suggest that this means that the appropriate time to put measures in place to protect and conserve an area is at the beginning of the assessment of the property for its world heritage values, but the actual obligation to do so is not clear. [21] The High Court has said that to give protection to an area during the assessment phase 'is to carry out and give effect to the Convention'. [22] However, as Boer and Fowler note, the Court went on to state that failure to put into place protective mechanisms before an area is identified does not constitute a breach of the Convention which is enforceable. [23]

2.27 Boer and Fowler suggest that when an area is publicly identified as being assessed for world heritage nomination it may well attract protection under the Convention and action may be taken under Commonwealth legislation to conserve and protect the area. [24]

The Convention and national sovereignty

2.28 The preamble to the Convention explains that UNESCO considered it was essential to 'adopt new provisions in the form of a convention establishing an effective system of collective protection of the cultural and natural heritage of outstanding universal value'.

2.29 In seeking to establish an international, collective system, the Convention does not require States Parties to surrender sovereignty over world heritage areas. Article 6 of the Convention states that:

2.30 The nature of the obligations that the Convention places on individual States Parties is established by Article 4, which states 'each State Party to this Convention recognises that the duty ... belongs primarily to that State'. DEST referred the Committee to a UNESCO publication which stated that:

2.31 In these provisions the Convention attempts to balance national sovereignty with international obligations. Atherton and Atherton argue that this means that states which have accepted the Convention are voluntarily conceding some limitation on their sovereign rights over world heritage listed properties within their borders:

2.32 The impact on sovereignty depends on the willingness of States Parties to accept international obligations or respond to diplomatic pressure. A State Party that has successfully applied to have properties included in the World Heritage List faces no sanction if it fails to properly manage those properties. [27] It appears however to be generally accepted that the Convention creates obligations that can only be avoided at the risk of international or domestic censure or displeasure. A State Party would not lightly abrogate its responsibilities under the Convention once a nominated area within its borders has achieved the recognition of being worthy of identification as world heritage.

The powers of the Commonwealth Government and the Commonwealth Parliament

2.33 The authority of the Commonwealth to sign and ratify international treaties, such as the Convention, depends on the executive functions of the Commonwealth Government as established by s. 61 of the Constitution, which provides that the executive power of the Commonwealth is exercisable by the Governor-General. In exercising this power the Governor-General acts upon the advice of the Federal Executive Council. [28] Before a treaty is entered into, approval must be given by the Governor-General in Council. In practice this means that the intention to enter into a treaty must first be approved by the Cabinet, or at least by the responsible Minister.

2.34 The difficulties and controversies that have accompanied the implementation of the Convention in Australia have, in part, arisen because the Commonwealth Government does not necessarily have the traditional responsibility for matters covered by the provisions of a treaty. New laws may be required to implement treaty provisions and these may have to be passed by the Commonwealth, State or Territory parliaments. In some cases complementary legislation may be required.

2.35 The power of the Commonwealth Parliament to pass such legislation depends, in part, on the powers allocated to it by s. 51(xxix) of the Constitution. This section of the Constitution empowers the Commonwealth Parliament to make laws in respect of external affairs. The Commonwealth may, however, only make such laws if the subject matter of the legislation is of international concern or if it is an 'appropriate implementation' of an international treaty or agreement. [29]

2.36 Although it is accepted that the Convention imposes specific obligations on Australia, it is not necessary to establish beyond doubt that a specific action is required as an obligation to validate that action. In the Tasmanian Dams case, for example, a majority of the High Court found that the sections of the World Heritage Properties Conservation Act 1983 were valid because they were an appropriate implementation of the Convention.

2.37 The requirement that domestic legislation need only be an appropriate implementation of a treaty does not give the Commonwealth an unfettered role to legislate for the management of world heritage. Any domestic legislation would still need to be reasonably appropriate and adapted to giving effect to the terms of the treaty. [30] There are also other constitutional limitations on the Commonwealth's powers, including a requirement that the Commonwealth cannot legislate to impair the essential functioning of a State or to discriminate against the States by placing a special burden or disability on them. [31]

2.38 Any legislation which sought to give the Commonwealth powers which could be seen to involve the acquisition of property without provision for just terms would also be invalid under s. 51 (xxxi) of the Constitution. This section provides that the Commonwealth may acquire property but only for purposes for which it has power to make laws and only on just terms. The actions that may amount to acquisition have not been fully defined. A majority of judges in the Tasmanian Dams case found that the regulations preventing the damming of the Franklin River did not amount to acquisition even though there was to be a restriction on the use of the land in question. It was argued that that the restriction did not result in the land being vested in the Commonwealth nor did the Commonwealth acquire a proprietary interest in the land. In other jurisdictions, such restrictions could result in compensation and it is possible that a future action of the Commonwealth could arise in a further case before the High Court to determine a question of just compensation.

The Convention and the management of world heritage in Australia

2.39 The powers of the Commonwealth Government to enter into treaties and the power of the Commonwealth Parliament to enact legislation implementing these treaties does not easily translate into management arrangements in Australia, because the basic federal nature of the Constitution remains. In the case of the World Heritage Convention the major issue in implementing the objectives of ensuring the 'protection, conservation and presentation' of world heritage is the role of the States as land managers of most inscribed areas.

2.40 It is clear that, as a signatory to the World Heritage Convention, Australia must do all that it can and whatever is appropriate to identify, protect and present world heritage within its borders. It is also clear that the legal regime and management arrangements put in place to implement the Convention are matters for Australia itself to determine and can involve a mixture of Commonwealth and State responsibilities. The Convention does not, however, create an obligation or an expectation that any one preferred form of arrangement will be put in place. In Australia a range of management arrangements has legitimately sprung up.

2.41 Even though the High Court has affirmed the Commonwealth's responsibilities and powers in relation to world heritage, it seems inevitable in Australia that a diversity of management arrangements will persist given the range of stakeholders, particularly State Governments, that need to be accommodated. The controversies surrounding world heritage in Australia stand in stark contrast to the international recognition that Australia has achieved as a nation with outstanding natural values, that is prepared to take more action than most to protect its heritage. The question of the balance of Commonwealth and State powers is central to most of these controversies.

2.42 Some submissions to the Committee called for the Commonwealth to take a more interventionist role in the management of world heritage areas, either by doing more to ensure adequate and consistent management arrangements or by taking more direct responsibility for management. Most submissions on this matter suggested however that a cooperative approach which continued to allow for State involvement was most important. This approach was stressed in submissions from State Governments, even where they also argued that the management of world heritage areas was principally a State responsibility.

2.43 Management arrangements for world heritage areas have largely been determined in a political as well as a legal context. The Commonwealth does not have the power to make comprehensive arrangements for the implementation of international treaties. It must rely, in part, on other processes, including cooperation with the States. The political realities of Commonwealth/State relations is unavoidable. Dr Gerry Bates is both a leading academic commentator on environmental law and a member of the Tasmanian Parliament. From his dual perspective he has concluded that 'legal power is tempered by political reality', which is:

Bates noted that the Commonwealth does not have the resources and on-ground presence to manage large tracts of land or to implement other policy measures in the States. Environmental management and protection must therefore be a cooperative effort between all levels of government, even in world heritage areas.

Conclusion

2.44 The Committee's most important conclusion from this chapter is that the Commonwealth bears the ultimate responsibility for ensuring that the obligations of the Convention are satisfied in Australia. In terms of the management of world heritage areas, this means that it must ensure that legal protection is provided, management plans are developed and implemented, management structures are put in place, periodic monitoring occurs, and adequate resources, particularly finance, are provided. The Commonwealth could seek to carry this burden of responsibility itself, but the constitutional arrangements and the practicalities of on-ground management in Australia necessitate negotiation and agreement with the States and a significant role for the States in managing those world heritage areas where the Commonwealth does not have direct jurisdiction.

2.45 In this matter the Committee agrees with the views of DEST:

2.46 The cooperative approach can lead to various legal regimes, agreements and management arrangements (as discussed in the following chapters), and these may be entirely appropriate in the context of the balance between Commonwealth and State responsibilities. The main concerns must be to ensure that the Commonwealth has legislation in place that it can use to ensure that world heritage areas are protected, and sufficient monitoring, assessment and reporting processes exist to guarantee that our international obligations are met.

Footnotes

[1] Mr Bing Lucas, submission (number 72), p 2.

[2] Professor Trevor C Atherton, submission (number 49), p 2.

[3] Juliet Behrens, 'The implementation of the World Heritage Convention in Australia: problems and prospects' in Environmental Law and Policy Workshop: Our Common Future, eds J M Behrens & B M Tsamenyi, University of Tasmania, Hobart, 1991, p 109.

[4] Department of the Environment, Sport and Territories, submission (number 62), p 3.

[5] Department of the Environment, Sport and Territories, submission (number 62), p 6.

[6] Sarah O'Brien, Commonwealth Power in relation to the Draining/Rehabilitation of Lake Pedder, paper prepared by the Parliamentary Research Service, Department of the Parliamentary Library, March 1995, p 1.

[7] Department of the Environment, Sport and Territories, submission (number 62), p 3.

[8] Attorney-General's Department, submission to the Inquiry by the House of Representatives Standing Committee on Environment, Recreation and the Arts into the Proposal to Drain and Restore Lake Pedder, (number 166), pp 7-8.

[9] Australia, House of Representatives, 1983, Debates, vol. HR131, p 46.

[10] The Commonwealth v Tasmania (1983) 158 CLR 1 at p 131.

[11] The Commonwealth v Tasmania (1983) 158 CLR 1 at p 131.

[12] Australian Mining Industry Council, submission (number 28), pp 16-7.

[13] Richardson v Forestry Commission (1987-88) 164 CLR 261 (the Lemonthyme and Southern Forests case); Queensland v Commonwealth (1989) 167 CLR 232 (the Wet Tropics case).

[14] Behrens, p 107.

[15] This summation of the Court's view was included in the judgement of Mason CJ and Brennan J in the Lemonthyme and Southern Forests case - Richardson v Forestry Commission of Tasmania (1987-8) 164 CLR 261 at 288-9.

[16] The Commonwealth v Tasmania (1983) 158 CLR 1 at p 158.

[17] The Commonwealth v Tasmania (1983) 158 CLR 1 at p 231.

[18] Ben Boer & Robert J Fowler, The Management of World Heritage Properties in Australia, Report to the Department of the Environment, Sport and Territories, Part II, undated, issued May 1996, p 13.

[19] Boer & Fowler, p 19.

[20] The Commonwealth v Tasmania (1983) 158 CLR 1 at p 225.

[21] Boer & Fowler, p 7.

[22] Richardson v Forestry Commission (1987-88) 164 CLR 261 at 290.

[23] Boer & Fowler, p 8.

[24] Boer & Fowler, p 8.

[25] Department of the Environment, Sport and Territories, submission (number 62), p 5.

[26] Trudie-Ann Atherton & Trevor C Atherton, 'The power and the glory: national sovereignty and the World Heritage Convention' The Australian Law Journal, vol. 69, August, 1995, p 637.

[27] Atherton & Atherton, p 633.

[28] Anne Twomey, Procedures and Practice of Entering and Implementing International Treaties, Background papers (Law and Public Administration Group) No 27, Parliamentary Library, 1995, p 8.

[29] Sarah O'Brien, Operation of World Heritage Properties Conservation Act 1983 (Cth) Background paper, Legislative Research Service, Department of the Parliamentary Library, March 1988, p 15.

[30] Attorney-General's Department, p 8.

[31] Attorney-General's Department, p 12.

[32] Gerry Bates 'Environmental protection - the Commonwealth's role', in Competitive Edge: Proceedings of the 29th Australian Legal Convention, Law Council of Australia, September 1995, p 410.

[33] Department of the Environment, Sport and Territories, submission (number 62), p 7.


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