House of Representatives Committees

CHAPTER 3: IMPLEMENTATION OF THE WORLD HERITAGE CONVENTION—LEGAL REGIMES

Introduction

3.1 The successful protection of world heritage areas depends on the implementation of effective management and regulatory regimes. This requirement is recognised in the Operational Guidelines for the Implementation of the World Heritage Convention, which provide that a natural site nominated for inclusion on the World Heritage List should have adequate long-term legislative, regulatory or institutional protection. ^[1]

3.2 Several submissions to the Committee suggested that Australia is the only State Party to the Convention that has enacted significant domestic legislation to implement the Convention. One obvious reason for this is that most other parties have either unitary systems of government or federal systems where the central government has responsibility for conservation. In these cases it is usually a matter of continuing pre-existing management of protected areas (such as national parks) which have been added the World Heritage List. In Australia, the division of responsibility between the Commonwealth and the States and the various land tenures of world heritage sites create a more complex situation. Legislation to ensure that the Commonwealth is able to meet its international obligation to protect world heritage in Australia was probably unavoidable, once the Convention was ratified by Australia and multi-tenure properties subject to State jurisdiction were listed as world heritage. ^[2]

3.3 The principal Commonwealth world heritage legislation was introduced specifically to prevent a proposed action by a State Government which was seen as a threat to the integrity of a world heritage area. Although the High Court subsequently made it clear that the Commonwealth has both the responsibility and the power to protect world heritage areas, the development of management arrangements for world heritage areas has involved a cooperative approach. The more recent Commonwealth legislation for the management of the Wet Tropics world heritage area complements new State legislation enacted for the management of this area.

The focus of protection—world heritage values or inscribed areas

3.4 The management arrangements have been criticised on the grounds that they do not take sufficient account of the reasons for which areas were listed as world heritage, or do not fully meet the obligations created by such listing. Mr David Haigh, for example, suggested to the Committee that when an area is listed it should be given the highest level of protection. He claimed that this is not occurring:

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3.5 Mr Haigh's concerns stemmed from what he regarded as an invalid emphasis on specific world heritage values rather than regard for the general protection of world heritage areas. He argued that once an area is listed, values are no longer relevant. They are supplanted by the status afforded to the world heritage area, and the Convention requires that the whole of the listed area should be protected. ^[4] Reviewing the threat to world heritage values before taking action to protect a listed area is not a relevant process according to Mr Haigh. He argued that inscription of an area on the world heritage list is a sufficient basis for taking protective action regardless of whether world heritage values are threatened. He also regards the current practice of considering world heritage values as a process that could allow activities such as mining, fishing and large scale tourism development in world heritage areas; he sees these activities as inimical to the protection of those areas.

3.6 A similar view was also strongly put by the Environmental Lawyers Group associated with the Cairns and Far North Environment Centre (CAFNEC). This group submitted that the Commonwealth has wrongly taken the view that only world heritage values identified at the time of listing need to be protected, not the area as a whole:

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3.7 As noted by Boer and Fowler there is support for this view in findings by the High Court, at least to the extent that once the boundaries of an area have been established as world heritage, the whole of the area within the boundaries attracts attention. Boer and Fowler suggest that:

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The assumption that Boer and Fowler allude to is not necessarily valid in all of Australia's world heritage areas, where values and boundaries have not always been well defined at the time of nomination. The Committee is aware that the boundaries of some world heritage areas have been changed as values have been more clearly defined and there are calls for other boundaries to be reviewed. It appears unsafe to assume that the current boundaries reflect the extent of the outstanding values in every case.

3.8 If it was argued that a strict protection regime had to apply without consideration of values and this was used as a basis to change the regulatory provisions for the protection of world heritage areas, much simpler legal and administrative regimes would result. Such regimes would also prevent damage from an accumulation of seemingly minor impacts. The High Court found that inscription of an area on the World Heritage List is irrefutable evidence of an area's status as world heritage under the World Heritage Convention, but other determinations from the Court make it difficult to introduce valid provisions of the kind that Haigh and the Environmental Lawyers Group would seem to advocate.

3.9 Questions also arise about the meaning of 'protection' and 'conservation' and how these obligations are to be applied to the whole of world heritage areas. The High Court, in defining the extent of the Commonwealth's powers, noted that the Commonwealth world heritage legislation applies equally to all parts of a prescribed world heritage area. However, the Court also considered the relevance of specific world heritage values that make up the features of an area and led to its world heritage listing. The Court made it clear that any law that relies on the external affairs power for its validity must be 'appropriate and adapted to fulfilling the obligation imposed by the treaty'. Regard must therefore be given to the purpose and intent of the Convention when considering the nature of the action the Commonwealth can take to protect world heritage.

3.10 This is not a straightforward matter and some High Court judges have said that Commonwealth measures to protect world heritage areas are valid if they protect some feature of the area that gives rise to its world heritage status. For example, Justice Gaudron said in one judgement that a law, which proscribes activities which do not pose a threat to the features that may give an area world heritage qualities, is not a law that is validated by the external affairs powers. ^[7] Legislation and regulations that have the effect of proscribing activities generally, regardless of whether or not they pose a threat to outstanding universal values, have not been supported by the Court. However, some information provided to the Committee argued that a more expansive view of the extent of the Commonwealth's powers is possible under the Convention. ^[8] The Committee notes that in this matter it is ultimately the determinations of the High Court that define the limits within which the Commonwealth has to work.

3.11 Boer and Fowler considered the extent of the duties imposed by the Convention. They argued, in relation to the obligation to protect an area, that the extent of the duty is to 'protect the Property in such a way that the World Heritage values ... are not damaged or destroyed'. ^[9] Boer and Fowler also discussed the evidence presented to the Committee by Haigh on the question of whether the basis for management should be the protection of world heritage values or the protection of the whole area that is inscribed on the world heritage list. Boer and Fowler saw far-reaching implications in the view that the whole of the property had to be protected and concluded that:

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3.12 When determining what action is necessary to protect a world heritage area, the management authority or the Commonwealth is required to consider only whether allowing a proposed action would be contrary to the duty imposed by the Convention to conserve and protect the area. Even if it is accepted that it is invalid to consider world heritage values in such circumstances, it would still be necessary to consider whether the proposed action would damage the area. Consequently, it would also be necessary to consider the nature and extent of possible impacts on the features of the area. The assessment of potential damage would, to a certain extent, be somewhat subjective. In some cases a degree of damage could be considered acceptable. The Environmental Lawyers Group, for example, argued that the threshold of acceptability could be reached when there is either any damage to the world heritage property, some damage to the property, or some damage to the world heritage values. The group noted that some environmentalists seem to favour the 'no damage' test, and alleged that the Commonwealth favours the 'some damage to values test'. They argued, however, that the 'some damage to the property' test is most useful because it permits development which enables the property to be presented to the public. This approach is seen as allowing some damage, up to a point that is acceptable within the Convention:

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3.13 Boer and Fowler noted that the Convention provides for 'conservation' as well as 'preservation'. They suggested that with a wide interpretation this could be taken to allow ecologically sustainable use, but only if that use was consistent with the conservation of world heritage values. ^[12] The Committee notes the views of the Environmental Lawyers Group, that some damage may be acceptable. It agrees with Boer and Fowler that ecologically sustainable use may be appropriate, in some circumstances. The Committee considers that potential damage can only be assessed by taking account of the values of an area. To determine what damage may be acceptable and what uses are appropriate it would be necessary to have regard to the features of the area, and the world heritage values. Although the whole of a listed area has the status of world heritage, it cannot be said that Australia's world heritage areas are homogeneous or that any action will have equally deleterious impacts if it were repeated in different parts of the area.

3.14 Many of the world heritage areas are large and diverse. It is naive to argue that universal heritage value is created by a decision of the World Heritage Committee. World heritage values exist solely because of the features of an area, and all the World Heritage Committee can do is recognise and acknowledge those features. It is also incorrect to suggest that a large area, such as the Wet Tropics, is homogeneous, that the features that give rise to its value as world heritage are uniformly spread across the entire area, or that those features do not change with time.

3.15 World heritage areas cannot be entirely locked away, and to do so would in itself be a breach of the Convention obligation to present the areas and to give them a place in the life of the community. It is quite clear, though, that what constitutes an acceptable level of 'some damage', or even what constitutes 'damage' is matter for assessment and judgement. The aim should be to minimise damage and ensure that world heritage values are not diminished.

3.16 It should also be recognised that the Operational Guidelines promulgated under the Convention recognise the variability that may occur in world heritage areas. The Guidelines stress that sites should be large enough to embrace all of the features that create and support the elements that are of universal value. ^[13] For example, where a waterfall is of universal value the catchment that sustains that waterfall should also be included in a nominated area, even if the catchment itself may not contain values of universal significance. More specifically, the Guidelines state that sites should be big enough to include critical habitats for wide ranging species. Large natural world heritage areas are not homogeneous but typically contain mosaics of diverse habitat types which can include areas of little significance between areas containing more critical habitats.

3.17 The Operational Guidelines also provide that the boundaries of a natural world heritage property should include sufficient area immediately adjacent to the features of outstanding universal value in order to protect the site's heritage values. ^[14] In the same paragraph the Guidelines allow for boundaries of world heritage areas to coincide with existing or proposed boundaries of protected areas, such as national parks, even though the entire area is not of world heritage value:

While an existing or proposed protected area may contain several management zones, only some of those zones may satisfy [world heritage] criteria ... ; other zones, although they may not satisfy the criteria ... , may be essential ... to ensure the integrity of the nominated site ... .

3.18 There is at least one documented example of the inclusion of a site within an Australian world heritage area for ease of management rather than world heritage values. The world heritage value of Lake Pedder was raised during the Committee's recent inquiry into a proposal to drain and restore the Lake. It was found that the status of the enlarged artificial Lake Pedder (which flooded the original lake) was addressed during the consideration of the nomination by the IUCN which, according to evidence presented by DEST, recommended that it be included for ease of management rather than because it had world heritage values. This is clearly an example of the World Heritage Committee including in an inscribed property a large area that did not possess world heritage values but was simply a part of a larger area with portions that did display these values.

3.19 Not all parts of large and diverse world heritage areas are equally sensitive to possible damage, nor does the Convention require that the most stringent methods that are necessary to protect world heritage values will necessarily be invoked to stop activities in all parts of world heritage areas. The approach advocated by Mr Haigh and others, despite the superficial appeal of a simplified and unambiguous legal regime, is not mandated by the World Heritage Convention and the Operational Guidelines. Nor is it supported by the Australian High Court's interpretation of the Convention and the Commonwealth's powers.

3.20 In practical terms it will always be necessary to have regard to the values of an area and to make a sound judgement about what constitutes unacceptable or inappropriate damage and what activities may be acceptable. Acceptable impact, in world heritage terms, will be that which does not detract from the permanent maintenance of the world heritage values of an area or that which may be necessary for the broader protection and conservation of an area and for other objectives, such as presentation and rehabilitation, as set down in the Convention. In proposing some guidelines for the assessment of possible damage, the Environmental Lawyers Group suggested that acceptable damage does not specifically include development. They noted that developments such as highways, resorts and marinas, which prevent the transmission of an area containing world heritage values in a substantially unaltered way, would be classified as development and would be unacceptable. ^[15]

3.21 Developments and uses which would damage world heritage values or prevent their transmission to future generations are unacceptable, but there are some works, uses and developments that do not so affect world heritage values as to preclude their consideration.

The scope of valid Commonwealth legislation

3.22 The Commonwealth would probably not be able to enact valid legislation that sought to provide a general regulatory framework for the control and management of activities in world heritage areas. The High Court struck down several provisions of the World Heritage Properties Conservation Act as being too general. One of the judges who found the provisions invalid, Justice Deane, argued that there was a lack of 'reasonable proportionality' between the provisions and the stated aim of protecting the world heritage area as required under the Convention. ^[16] Justice Brennan stated that:

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3.23 In a paper to the ACIUCN workshop in August 1995, Mr Atticus Fleming, an officer of the Attorney-General's Department, argued that the external affairs power could probably not be used to support a 'scheme of controls and prohibitions' that would apply uniformly to all Australian world heritage properties. Fleming suggested that, to ensure that a legislative scheme is supported by the external affairs power, regulations must be directed towards the particular threat which is faced by the particular world heritage property. As he pointed out, 'there must be a sufficient relationship between the prescribed acts and the nature and source of likely damage to the world heritage property'. ^[18]

3.24 Furthermore, Fleming suggested that defining the activities and prohibitions that would be reasonably appropriate and adapted to the protection and conservation of world heritage areas (and which could be included in broad legislation) may be a complex task. He noted, however, that broad legal measures taken under the corporations power provided to the Commonwealth by the Constitution could be more easily applied, because the corporations power does not require that prohibited acts be so closely related to the source of specific damage to a property. ^[19] Such regulations would however be limited in their application to corporations.

3.25 What is required is a legal and administrative regime that provides a framework for effective and efficient management and protection of world heritage areas, while at the same time giving effect to Australia's obligations under the Convention. There are three primary considerations:

the principal obligation is to protect and conserve world heritage areas;
the measures adopted in Australia have to be appropriate to the constitutional situation and reflect the responsibilities of the Commonwealth and the States; and
management arrangements must have regard to the characteristics of the area, including the diversity of biological and physical features, and the land tenure.

3.26 Given the constitutional arrangements that apply in Australia and the extensive, multi-tenure nature of many of Australia's world heritage areas, it seems both logical and appropriate to develop a legal and administrative regime that allows for flexibility, multiple use, zoning and a role for both the Commonwealth and the States. The main questions are what constitutes an appropriate balance in the decision making and legal power between the Commonwealth and the States, and how can this be provided for in legislation if required.

3.27 The range of legal and administrative arrangements that have arisen is in part the result of efforts to find this balance. The Committee considers that, whatever arrangements are developed, it is important for the Commonwealth to maintain some overriding power to ensure that world heritage areas are not damaged. It is best to put in place cooperative management arrangements and dispute resolution processes, but it will still be necessary to retain strong, overriding Commonwealth legislation that can be invoked to prevent inappropriate activity.

The legal and administrative arrangements

3.28 The World Heritage Properties Conservation Act 1983 is the principal legislation enacted by the Commonwealth in response to its world heritage obligations, but it is not the only legislation that applies to world heritage properties. Commonwealth legislation enacted to establish management arrangements for particular areas, such as the Great Barrier Reef, have continued to apply to those areas after they were inscribed on the World Heritage List. Other Commonwealth legislation, which provides generally for such things as the protection of endangered species and the consideration of possible environmental impacts, may also apply to particular proposed activities in world heritage areas. This suite of legislation stands alongside Commonwealth-State agreements and existing administrative arrangements put in place by the States. Together they provide the overall regime for the management of world heritage areas.

Commonwealth Legislation

a) World Heritage Properties Conservation Act

3.29 The World Heritage Properties Conservation Act was proclaimed in 1983 as an Act relating to the protection and conservation of world heritage properties. Under certain circumstances the Act can be used to prevent specific activities but, as DEST pointed out in its submission to the Committee, the Act does not automatically control activities in world heritage areas. ^[20] The Department noted that the Act does not enable the Commonwealth Government to assume responsibility for the general management of a property. Boer and Fowler observed that the Act was made in response to a specific threat rather than to provide a general framework for the management of world heritage areas. Even though later amended, it was not 'an instrument geared to the management of World Heritage Properties'. ^[21]

3.30 Whilst the Act does not establish general management arrangements, it does provide for the making of proclamations which can be used to prevent damage to properties. However, such proclamations can only be made when the Governor-General in Council is satisfied that a property is being, or is likely to be, damaged. Once this occurs, certain specified activities are made unlawful by the Act or the Governor-General may make regulations proscribing specified activities.

3.31 The requirement in the Act for a proclamation in response to a perceived threat is a significant feature. As Fleming explained 'the critical point to note is that a Proclamation can be made only if there is evidence of a threat to the world heritage characteristics of the identified property'. ^[22] This provision appears to limit the application of the Act but is probably necessary to ensure its validity. It is a reflection of the limitation on the Commonwealth's direct powers in respect of the environment. DEST quoted advice from the Attorney-General's Department which suggested that this limitation in the Act is probably unavoidable, given the views of the High Court. ^[23] The Act appears to have been limited in its provisions to ensure that it would be valid if challenged, and to provide the Commonwealth with an opportunity to take action only when State regulation is inadequate or not enforced. It was always intended that this would be the case and, in his second reading speech on the Bill, the then Minister for Home Affairs and Environment stated:

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3.32 Several submissions have been made proposing that the Act be amended, mainly to provide for a broader and more proactive approach to the management of world heritage areas or to improve the administration and enforcement of the Act. A paper by five peak industry associations called for the implementation, through amendment of the Act, of a wide range of reforms to the assessment and nomination process, community participation, management plans and compensation. ^[25] The reforms advocated in this paper were reflected in a submission to the Committee by the MCA, which also went on to identify other concerns it had about the provisions of the Act. ^[26]

3.33 The MCA pointed out that the Act provides that, in 'determining whether an activity or act is unlawful' in relation to a world heritage area, the Minister may only have regard to the protection, conservation and presentation of the world heritage area in question. Article 5 of the World Heritage Convention, however, provides that States Parties should endeavour to give world heritage a function in the life of the community and should integrate the protection of world heritage into comprehensive planning programs. The MCA argued that this approach provides a basis for the Minister to consider broader matters beyond just protection, conservation and presentation. ^[27]

3.34 The Act actually limits the Minister to considering protection, conservation and presentation when giving consent to an activity that would otherwise be rendered unlawful by a proclamation and regulation made under the Act. Furthermore, the Minister may only act then in respect of s. 9 of the Act. The Act does not necessarily limit the range of matters that the Minister can consider in respect of planning, management and funding decisions, or actions that the Government may need to take in relation to a world heritage area. This point was brought out by the High Court challenge to the terms of reference of the Helsham inquiry which was established to investigate potential world heritage values and alternative timber supplies in Tasmania's Lemonthyme and Southern Forest. The High Court's ruling that the terms of reference were valid has led to the observation that a State Party to the World Heritage Convention is permitted to take into account economic and other factors in determining how it will discharge its obligations in respect of world heritage areas in its territory. ^[28]

3.35 Conversely, in another instance, the Court found that provisions in the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987, which invoked similar limitations to those that concerned the MCA, did restrict the range of matters that could be considered. The Court found that, when considering whether to give consent to certain activities relating to the protection of an area being assessed for world heritage values, that consent can only be refused if it is necessary to do so to attain the objectives of the World Heritage Convention. ^[29]

3.36 It may therefore be difficult to amend the legislation to remove the restrictions that concerned the MCA. It is important to note, however, that the limitations of concern to the Council may only apply in relation to some decisions that might be taken under the Act, and would not generally limit the Commonwealth in its decision making in the general management of world heritage matters. There is also a lack of precision in the terms 'protection, conservation and preservation' and, as Boer and Fowler point out, there is no guarantee that political and economic factors will not impinge on a Minister's consideration. ^[30]

3.37 In commenting on the Act, the National Farmers' Federation (NFF) noted its limited scope, ^[31] and the Federation's Deputy Director, Mr Robert Hadler, proposed to the Committee that the Act be amended:

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3.38 Proposals to expand and amend the Act were also made by the conservation movement. Like the NFF and the MCA, CAFNEC found that the Act was not sufficiently comprehensive. CAFNEC submitted that the Commonwealth should supplement the World Heritage Properties Conservation Act with new legislation that would enable it to both manage world heritage sites and enter into cooperative management arrangements. ^[33] It was suggested that such legislation would put the Commonwealth in a stronger position when negotiating with the States, and would also allow the Commonwealth to set standards for the management of world heritage areas.

3.39 Haigh specified a number of deficiencies in the Act, some of which were the consequence of the requirement that matters can only be regulated when a potentially damaging action is proposed. He called for new legislation to replace the World Heritage Properties Conservation Act; he suggested that there is an urgent need for any world heritage legislation to include an overall Ministerial consent provision:

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3.40 Haigh suggested for example that, because the Commonwealth can only respond to specific proposals, it may be easily misled by a developer who portrays a proposal in a piecemeal fashion and so understates likely impacts. The lack of references to cumulative impacts or the precautionary principle is noted by Haigh as two other deficiencies in the current Act.

3.41 The possibility of amending the Act to allow for automatic application of the provision relating to protection, development and implementation of development plans was considered by Fleming in his paper to the ACIUCN's Richmond Conference. ^[35] He noted that such amendments would be subject to the constitutional constraints of the sort discussed above. Fleming's conclusions were that automatic application of the Act would probably be invalid, and provisions for management plans would necessarily be so limited that the implementation of comprehensive management plans would require the cooperation of the States.

3.42 The lack of enforcement provisions to address situations in which a developer flouts the provisions of a proclamation was also noted by Haigh. He suggested that a proclamation made in relation to Oyster Point adjacent to the Great Barrier Reef world heritage area did not initially result in the cessation of activities that had been rendered unlawful. ^[36] A similar concern was expressed by the Wilderness Society in relation to an alleged violation of development consent conditions in the construction of a road in the Wet Tropics world heritage area. ^[37] As it currently stands, consent conditions can only be imposed indirectly under the Act by specifying in sufficient detail the nature of the action that is regulated.

3.43 The Act does not provide criminal sanctions for activities that are rendered unlawful by proclamation or regulation. However it does provide at s. 14 that the High Court may, upon application, grant an injunction restraining a person from doing an act that is unlawful. Associations, such as environmental groups with a prior interest in the matter, are given standing to make such an application.

3.44 Fleming suggested that consideration could be given to amending the Act to allow for consent conditions to be more easily made and varied, or for consent itself to be suspended and revoked in appropriate circumstances. He also suggested that criminal offences could be created for breaches of consent conditions. ^[38]

3.45 The Committee agrees that some of the perceived deficiencies in the Act can and should be corrected. The proposals for a broad Act generally providing for management of world heritage areas are naive, given the provisions of the Constitution and position of the High Court. However, there is scope to amend the World Heritage Properties Conservation Act so that it allows for the Minister to more easily specify and enforce conditions attached to any approvals. It would also be helpful if the Act were to include a statement of principles and objectives.

3.46 The question for the Committee is whether the Act should provide a basis for the general management of world heritage or whether it should continue as a means whereby the Commonwealth can take last resort action to ensure that its obligations are met. Whether it is necessary to recommend that the Act be amended will depend on the answer to this question. Boer and Fowler concluded that, if it is desired to establish a more comprehensive scheme of protection and management, the Act would need to be amended to include specific management powers. They also pointed out however that, bearing in mind the constitutional limitations, the Commonwealth may wish to recast the Act and negotiate with the States and Territories for the introduction of complementary legislation. ^[39] The recasting of the Act was seen by Boer and Fowler to involve significant additions to its scope and purpose, including:

incorporation of mandatory management principles and ecologically sustainable development principles;
inclusion of the duties established by the Convention and definition of 'protection, conservation and presentation';
specification of a standard management structure;
introduction of an enforcement regime; and among other things
mechanisms for public inquiries, dispute resolution and simplified processes. ^[40]

3.47 Some of what Boer and Fowler recommended is unnecessary or goes beyond what is appropriate for Commonwealth legislation, given the role that the States play in the day-to-day management of most world heritage areas. The introduction of standard management structures, for example, is not a matter for legislation. This is something that should be negotiated with the States and modified as necessary to suit the specific circumstances of different areas. The Committee agrees, however, that the Act should include a statement of the principles that are to be applied pursuant to the obligations created by the Convention and that it should define key terms.

3.48 Many of the concerns about the Act can be overcome by administrative and management processes, particularly those that clarify the balance of responsibilities between the Commonwealth and the States. In this regard it is notable that the industry associations that called for reform have indicated that progress in relation to some matters of concern is occurring without amendment to the legislation. ^[41] Other contentious issues are more properly addressed through other Commonwealth legislation and Commonwealth/State agreements that provide for the application of State legislation to the management of world heritage areas.

3.49 The World Heritage Properties Conservation Act needs to be retained and strengthened as a means by which the Commonwealth can apply to ensure that its obligations are being met and the objectives of world heritage achieved. It should not, however, be applied as the primary legislative provision for the general management of world heritage areas. The Committee recommends that:

(1) the World Heritage Properties Conservation Act 1983 be:

a) retained as the means by which the Commonwealth Government protects world heritage areas in those cases where other avenues fail to adequately achieve the objectives of protection and conservation;

b) amended to include statements of the principles to be applied to the management of world heritage areas and definitions of the obligations and duties created by the World Heritage Convention; and

c) amended to provide the Minister with the power to set conditions on approvals, to enforce such conditions, and to enforce the provisions of the Act after a declaration has been made.

3.50 A possible loss of property rights following the making of proclamations and regulations under the Act was a matter that the MCA argued went beyond the requirements of the Convention. The MCA referred to the Article 6 (1) of the Convention which provides that the duty to protect world heritage should be followed 'without prejudice to the property rights provided by national legislation'. The MCA submitted that:

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The Constitution provides that land can only be acquired by the Commonwealth if it pays 'just terms'. When the High Court found in the Tasmanian Dams case that the Commonwealth's actions did not result in an obligation to pay compensation because property was not acquired, it was applying national law. In this regard the Act is in accord with the Convention which says that compensation be determined in accord with national law.

3.51 The question of compensation raised by the Council and other industry groups is a matter that concerns the Committee, because restrictions placed on land use under the Act can reduce the rights of property owners. The Act provides that the Commonwealth is liable to pay compensation where property is acquired due to operation of the Act, but just compensation is not otherwise provided. Acquisition is defined in the same terms as in the Constitution and does not extend to the limitation of certain land uses that might occur in situations where property rights are not actually acquired. Compensation has also been made available in an ad-hoc way in the form of structural re-adjustment payments, and funds have been allocated for the acquisition of property in relation to the listing and management of some world heritage properties. Mr David Buckingham, the then Executive Director of the MCA, told the Committee that:

The council would like to see further specific commitment from the Commonwealth on compensation. Importantly, there is no legally recognised right to compensation under the World Heritage Properties Conservation Act. It is the lack of security that attaches for many property interests to both the prospect of and subsequent enactment of World Heritage that is the point of concern. It is the provision of such security that really needs to be addressed.

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3.52 The question of compensation is considered further by the Committee in Chapter 7. At this point it is sufficient to note that amending the Act to include provision for assessing of the need for compensation in the event of a loss of rights to use land is one possible way of dealing with this issue.

b) The Great Barrier Reef Marine Park Act

3.53 The Great Barrier Reef is managed, at least in part, by Commonwealth legislation that predated the world heritage listing of the region. The Great Barrier Reef Marine Park Act 1975 was taken to be adequate for the management of the world heritage area when the area was nominated. In the covering letter to a submission from the Great Barrier Reef Marine Park Authority (GBRMPA) the Authority Chairman, Dr Ian McPhail, explained that at the time of nomination of the world heritage area it was agreed that the management processes were sympathetic to, and aligned with, the attainment of world heritage goals, even though the Act did not refer to world heritage. The nomination document put forward by the Commonwealth detailed legislative, regulatory and management arrangements, including the provision for zoning. The management processes in place in the Great Barrier Reef Marine Park and adjacent Queensland marine parks were proposed as the management arrangements for the nominated world heritage area. ^[44]There have been two problems with this approach.

3.54 One problem was that the GBRMPA did not explicitly consider the impact of activities and proposals on world heritage values. The Authority had believed that management processes established under the Great Barrier Reef Marine Park Act implicitly covered matters that might be considered to be world heritage values. This has lead to difficulties in meeting the expectations of the public which now appears to regard the region as much in terms of its world heritage status as its marine park status. The Authority acknowledged that it 'recognises that this implicit management of World Heritage values does not always meet the expectations of the public'. ^[45] Until amended in 1995 the Great Barrier Reef Marine Park Act did not contain any specific reference to world heritage. There is now a requirement that management plans must have regard to the protection of world heritage values. This assumes that the world heritage values of the marine park are defined clearly enough to be taken up in management plans.

3.55 It would be impractical, inappropriate and unnecessary to simply ban all activities in the Great Barrier Reef world heritage area on the grounds that the whole area is world heritage. Such a ban would overcome the potential difficulty of evaluating every decision in relation to impacts on world heritage values, and possibly then arguing those decisions if appealed against; but it would jeopardise tourism, fishing and other commercial activities worth over $1 billion annually, without necessarily advancing the protection of the area. Much of the area, such as the sea surrounding the reefs, was nominated to ensure the integrity of the site, ^[46] but not all of this area would rate highly in terms of world heritage values. With zoning providing high level protection for core areas containing world heritage values, it is unnecessary to routinely consider these values in all decisions that relate to non-core areas. It is necessary, however, to ensure that the management arrangements and processes are aligned with the need to protect and conserve the world heritage area. The definition of world heritage values is therefore essential for the management of the marine park. The difficulty of defining world heritage values and the work the GBRMPA has recently commissioned to assess these values is discussed in Chapter 4.

3.56 The second problem stems from a lack of congruity between the boundaries of the area protected by the Great Barrier Reef Marine Park Act and the boundaries of the world heritage area. The proclaimed area of the Great Barrier Reef Marine Park generally follows the low water mark but excludes areas defined as internal waters of Queensland, the islands owned by Queensland, and several other areas such as ports. The world heritage area also generally follows the low water mark but includes the islands and internal waters not included in the Park. About three per cent of the world heritage area is not in the marine park and therefore not within the GBRMPA's legal jurisdiction. The Authority told the Committee that there is a public expectation that this three per cent is managed by it, and it is this area that includes much of the development and activity that affect the region. ^[47] Action to prevent the proposed development at Oyster Point, for example, was taken under the World Heritage Properties Conservation Act rather than the Great Barrier Reef Marine Park Act.

3.57 The Great Barrier Reef Marine Park can be adversely affected by actions outside the park boundary and the GBRMPA has some limited powers under its Act to regulate pollution that may affect the park. The GBRMPA has also acted in an advisory capacity in relation to those areas of the world heritage area outside the park. The GBRMPA's Acting Executive Officer, Ms Prue Keen, explained that the Authority works with three levels of protection: the core areas zoned for protection; other areas within the marine park where a wider range of use is permitted subject to regulation by the Authority, and an outer 'buffer area' not regulated by the Authority. ^[48] In the outer area the Authority works in a 'regime of partnership' with other agencies, particularly the Queensland Government. This arrangement can lead to problems in relation to the parts of the world heritage area outside the park. This occurred most recently at Oyster Point where the procedures of the Queensland Government did not meet the then Commonwealth Government's interpretation of the requirements for protecting the world heritage area.

3.58 The GBRMPA told the Committee that it had initiated discussions with DEST with a view to being the Commonwealth's chief representative in dealing with World Heritage issues with Queensland agencies. ^[49] The Committee was also told by Ms Keen that it was the Authority's intention to seek a single legal regime for the entire world heritage area. ^[50] Such a change in responsibility would require the Authority to exercise delegated powers under the terms of the Environment Protection (Impact of Proposals) Act 1974, and to carry out the Commonwealth's assessment of the possible environmental impact of proposals. In reviewing the environment assessment process associated with the Port Hinchinbrook development proposal, Boer and Fowler noted the proposal that the GBRMPA be delegated powers from the Commonwealth Environment Protection Agency (CEPA). They suggested that, although this might result in some efficiencies, it could also lead to variation in environment assessment standards. ^[51] The Committee considers that the responsibilities under the Act, currently administered by CEPA should not be delegated to the other agencies. In this case however, the Memorandum of Understanding between GBRMPA and CEPA about the administration of the Act may need to be reviewed. ^[52] The review should ensure that it is clear that environment assessment requirements and processes are harmonised with the management processes applied in the marine park and that the GBRMPA has a role in assessing any proposals that may affect the world heritage area.

3.59 The Great Barrier Reef Marine Park Authority is well placed to administer the whole of the world heritage area and its efforts would be made more effective if it had sole jurisdiction from the Commonwealth perspective. The Committee considers that, as far as the Commonwealth's responsibilities are concerned, the Authority should have responsibility for the entire Great Barrier Reef world heritage area. It applauds the Authority's efforts to develop a better understanding of the implications of world heritage values on its operations and to establish single legal and administrative regimes for the marine park and world heritage area.

3.60 The protection of the world heritage area would be more certain if the boundaries of the world heritage area and the marine park completely coincided or were contained entirely within the park. One option might be to reduce the extent of the world heritage area so that it encompassed only the core areas within the park. Ms Keen suggested, however, that this would make it more difficult to manage the area. Her preference was for the GBRMPA to manage the whole region. The review of world heritage values carried out for the GBRMPA found that the large size of the world heritage area was important to the maintenance of the values.

3.61 The Great Barrier Reef Marine Park Act provides the best basis for protecting the world heritage area. Where possible, the Commonwealth should be prepared to negotiate an agreement with Queensland for the acquisition or lease of significant world heritage areas currently outside the marine park but which ought to be included within the park boundaries. Any areas that cannot be acquired or leased but which should be retained as world heritage areas should be jointly managed under a formal agreement between the Commonwealth and Queensland. The Committee recommends that:

(2) the administration of the World Heritage Properties Conservation Act be delegated to the Great Barrier Reef Marine Park Authority in relation to those parts of the Great Barrier Reef world heritage area outside the Great Barrier Reef Marine Park.

(3) the Great Barrier Reef Marine Park Authority be the administration agency, as far as the Commonwealth Government's role is concerned, for all world heritage aspects of the entire Great Barrier Reef world heritage area.

(4) the memorandum of understanding between the Great Barrier Reef Marine Park Authority and the Commonwealth Environment Protection Agency regarding the administration of the Environment Protection (Impact of Proposals) Act 1974 be reviewed to ensure that the Act's environment assessment requirements and processes are harmonised with the management processes applied in the marine park and that the Authority has a role in assessing any proposals that may affect the world heritage area.

(5) the Commonwealth Government seek the agreement of the Government of Queensland to a joint review of the boundary of the Great Barrier Reef world heritage area and the Great Barrier Reef Marine Park with a view to aligning the two.

(6) pending the alignment of the boundaries of the Great Barrier Reef Marine Park and the world heritage area, the Commonwealth Government seek the agreement of the Government of Queensland to the development of management plans that recognise and protect the world heritage values and status of those parts of the world heritage area not in the Great Barrier Reef Marine Park.

c) Other Commonwealth legislation

3.62 Following the successful nomination of the Wet Tropics area as world heritage the Commonwealth enacted the Wet Tropics of Queensland World Heritage Area Conservation Act 1994. This is the only Commonwealth legislation, apart from the World Heritage Properties Conservation Act, that the Commonwealth has enacted specially for the administration of world heritage areas and is the only act that relates to a single area. The legislation is however only minor and complements the Queensland Wet Tropics World Heritage Protection and Management Act 1993. The purpose of the Commonwealth's Act is to give effect to an agreement on the management of the area made between the Commonwealth and Queensland on 16 November 1990, and to facilitate the implementation of Australia's international duty under the World Heritage Convention.

3.63 The two world heritage areas administered by ANCA (Kakadu National Park and Uluru-Kata Tjuta National Park) are national parks declared and managed under the provisions of the National Parks and Wildlife Conservation Act 1975. Each park is managed by a board of management in conjunction with the Director of National Parks and Wildlife.

3.64 Provisions of other acts may apply to these and other world heritage areas to the extent that they relate to Commonwealth decisions that have implications for the protection and management of world heritage areas. Generally, other Commonwealth legislation that can be applied to the regulation of activities in world heritage areas does not include reference to world heritage.

3.65 The Environment Protection (Impact of Proposals) Act and the Australian Heritage Commission Act 1975 could be applied to the protection of world heritage areas in instances when a Commonwealth decision or action was involved and such application was not constrained by other legislation. The Environment Protection (Impact of Proposals) Act does not apply to any action that is taken under the World Heritage Properties Conservation Act. This restriction was inserted when the Environment Protection (Impact of Proposals) Act was amended by a new Section 4A in 1988 following the enactment of the World Heritage Properties Conservation Act. The amendment sought to clarify the legality of action taken under the World Heritage Properties Conservation Act. It did not relieve the Commonwealth from its general responsibilities under the Environment Protection (Impact of Proposals) Act as the Act would have otherwise applied in world heritage area. The then Minister for Arts and Territories explained in the House of Representatives during the second reading of the amending bill that:

^[53]

3.66 Despite this statement about the amendment to the Environment Protection (Impact of Proposals) Act, the capacity to require environmental assessments in world heritage areas is uncertain. Section 4A is worded in broad terms and appears to preclude any assessment under the Environment Protection (Impact of Proposals) Act in a situation where the Commonwealth acts to control a development proposal by invoking its powers under the World Heritage Properties Conservation Act. ^[54] Boer and Fowler identified a need for the Commonwealth Minister responsible for the environment to be able to consider the need for an environmental assessment for any development that might threaten the world heritage values of a world heritage area. They recommended that section 4A of the Environment Protection (Impact of Proposals) Act be further amended to clearly provide that it does not preclude the Minister from requiring an assessment in relation to any proposed development in, at or near a world heritage area. ^[55]

3.67 Some submissions to the Committee argued that the Environment Protection (Impact of Proposals) Act should be amended to provide that any proposed developments in world heritage areas be subject to Commonwealth scrutiny. CAFNEC argued, for example, that all projects in world heritage areas should be designated developments which would automatically trigger the Environment Protection (Impact of Proposals) Act. ^[56] Mr Haigh has pointed out that the World Heritage Properties Conservation Act and the Environment Protection (Impact of Proposals) Act have different tests that govern when they should be applied. ^[57] He noted that the World Heritage Properties Conservation Act sets the test at 'likely to damage or destroy' an area but the Environment Protection (Impact of Proposals) Act is triggered only when there is likely to be a significant environmental impact. If the Act were to be generally applied to proposals in world heritage properties, the definitions of threat and damage might need to be reviewed, although it is most likely that any proposal that might damage world heritage values would also be seen as likely to have a significant environmental impact.

3.68 The higher standards that would need to be applied were also noted by Boer and Fowler. They argued that special considerations, taking account of the obligations created by the Convention, should apply where it was considered appropriate for an environmental impact assessment to be made for a proposed development activity in a world heritage area. The test usually applied when determining if an environmental impact assessment is required under the Environment Protection (Impact of Proposals) Act is whether the proposed development is likely to affect the environment to 'a significant extent'. A more appropriate test for world heritage areas would be, according to Boer and Fowler, that an assessment should be required if the development is 'likely to damage or destroy the World Heritage values of the property'. ^[58]

3.69 The Environment Protection (Impact of Proposals) Act was being reviewed by the previous Government. Following the 1996 election the current Government initiated a wider ranging review of environmental legislation, which subsumed the review of the environmental impact assessment legislation. The Committee does not want to comment in detail on environmental impact assessment procedures in advance of the findings of that review. It notes however that it is clear that the Commonwealth has a duty to ensure that world heritage areas are protected. Furthermore, the Commonwealth has the power to take action under the World Heritage Properties Conservation Act when world heritage areas are threatened. This action should, where necessary, be based on a sound assessment of possible impacts on world heritage values. The Environment Protection (Impact of Proposals) Act, or the administrative procedures under the Act, could be amended to ensure that the Commonwealth automatically considers the potential impact of developments proposed in and adjacent to world heritage areas, at least in those circumstances where the Commonwealth is required to make a decision to take some action. Amendments might be invalid if they were seen as an attempt to introduce a general scheme of management or environmental control in areas not owned by the Commonwealth. On the other hand, they could be considered valid if they provided preliminary steps to possible action under the World Heritage Properties Conservation Act in those cases where a potential for environmental damage was found to exist. The Committee recommends that:

(7) the Environment Protection (Impact of Proposals) Act 1974 be amended to provide that:

a) an environmental assessment be required when there is the possibility that a proposed action will damage the world heritage values of a listed world heritage area; and

b) the duties imposed by the World Heritage Convention be required to be addressed in any environmental impact statement relating to a proposed development likely to affect a world heritage area.

Joint Commonwealth/State Regimes

The application of State legislation in world heritage areas

3.70 State nature conservation and national park legislation provides the framework and legal regime for general management and protection for most of the world heritage areas. This legislation usually pre-dates world heritage listing and does not make specific reference to world heritage obligations. This is similar to the practice in other countries where natural world heritage areas are typically national parks, protected and managed pursuant to national parks legislation. A recent survey by Mr Peter Valentine of James Cook University found that 85 per cent of all such natural world heritage areas globally are national parks or their equivalent. ^[59] Mr Valentine noted that for such places national or provincial laws, which deal with the protection of national parks, already support the obligations created by the World Heritage Convention. A survey commissioned by the MCA to look into the legal and administrative arrangements for world heritage in some other countries also found that most natural world heritage areas are either federally or provincially owned and managed. ^[60] Advice provided to the Committee by the Australian Permanent Delegation to UNESCO pointed out that, in the United States and Canada, parks services have full control of almost all world heritage sites. Furthermore, no special legislation has been developed beyond that applying to national parks. ^[61]

3.71 Whilst the situation in Australia is similar to that which applies overseas there are some differences. Some sites are entirely, or largely, national park or an equivalent, and managed by either the Commonwealth or a State parks service. However, not all areas fall into this category. The historical development of some Australian world heritage sites has led to the inclusion of a variety of land tenures. In such cases, a unifying agency such as the Wet Tropics Management Authority, has been set up. Mr Valentine argued that such authorities are essential to the maintenance of the world heritage values of those areas. ^[62]

3.72 The Committee agrees that the arrangements set up for the Wet Tropics world heritage area may be useful in other mixed tenure sites where the Commonwealth is not a principal land holder. Among other things it provides for the management and protection of the area under existing State legislation, with a management authority established by special legislation and supported by complementary Commonwealth legislation. There is little practical alternative for the Commonwealth in such circumstances, short of acquiring the area. Whilst ever these areas are largely State owned, State legislation will continue to apply. It is preferable for natural world heritage areas to be national parks or some similar category of protected area, and for them to be protected by the legal regime that applies to national parks in the States in whose territory the areas occur.

3.73 The Committee has not conducted a complete review of State legislation and jurisdiction that might apply to all world heritage areas and so cannot make recommendations about the need for additional Commonwealth legislation or the need for the Commonwealth to pursue with the States the need for additional State legislation. The Commonwealth should ensure that formal agreements are in place for each area to define and clarify the legal regime and to balance State and Commonwealth responsibilities and interests. The Commonwealth also needs to review State legal regimes in each case to ensure that adequate protection is afforded. Where adequate protection is not provided new measures will be required, such as the establishment of a unifying agency like the Wet Tropics Management Authority.

3.74 State legislation may adequately provide for the protection and conservation of many world heritage areas by imposing regulatory regimes and management processes of the kind typically applied to national parks. The lack of specific reference to world heritage concepts and obligations in this legislation is not conducive to the development of a consistent national approach to the management of world heritage areas. Nor can it be said with any certainty that Australia is meeting its obligations under the World Heritage Convention or that the actions of the management agencies comply with those obligations. By commissioning the report by Boer and Fowler, DEST has already reviewed the Commonwealth's legislative arrangements. A review of State legislation is also required. This would identify the need to amend or supplement State legislation to, as Boer and Fowler suggest, 'ensure the integration of World Heritage matters into State and Territory planning programmes and development control and environmental impact assessment processes'. ^[63]

3.75 The Committee recommends that:

(8) the Commonwealth Government seek the cooperation of the State and Territory Governments in a comprehensive review of all relevant State and Territory legislation that is relied upon to provide regulatory and management provision for the protection and conservation of world heritage areas.

This review will identify the need for amendments that will lead to consistent and effective arrangements for all world heritage areas having regard to Australia's international obligations.

The Intergovernmental Agreement on the Environment

3.76 In some world heritage areas the administrative and management arrangements are subject to agreements or arrangements between the Commonwealth and the State Governments, which have jurisdiction over the areas and are generally responsible for day to day management. In addition, broad guidelines have been drawn up to encourage cooperation between the Commonwealth and the States in respect of the nomination of world heritage areas. ^[64] These guidelines were superseded by the more general IGAE.

3.77 The IGAE was adopted in 1992 to define environmental roles and facilitate cooperation on environmental matters between the Commonwealth, the States, Territories and local government. It did not affect any existing agreements between the Commonwealth and a State, but provided a general statement of the principles and policies that will be followed in the administration of environmental matters and in negotiating arrangements between these bodies. The IGAE does not preclude the Commonwealth from taking unilateral action on environmental issues of national significance. ^[65]

3.78 Under the IGAE it was agreed that the Commonwealth has responsibility for entering into international environmental treaties and ensuring that international obligations relating to the environment are met by Australia. It also provides for cooperation and consultation on such matters. Responsibilities for specific areas of policy and management are set out in schedules which form part of the IGAE. The schedule on world heritage responsibilities notes that the Commonwealth has an obligation under the World Heritage Convention and deals mostly with a cooperative process to identify, assess and nominate world heritage. It also provides that management arrangements for world heritage areas 'will take into consideration the continuation of the State's management responsibilities for the property while preserving the Commonwealth's responsibilities under the World Heritage Convention'. The IGAE does not detail the type of arrangements that should be put in place in each world heritage area but is a statement of principle that provides a guide to what would be appropriate.

3.79 Some submissions to the Committee were critical of the IGAE. The MCA, for example, argued that elements of the agreement relating to the nomination process were not being honoured and did not go far enough in ensuring that the agreement and cooperation of the States was a precondition for nominating sites. The MCA also noted that world heritage area management plans were not always developed as envisaged under the IGAE. It went on to propose that the agreement be revised to include agreement that 'there is a need for accepted proposals for the management and funding of all World Heritage properties in Australia'. ^[66]

3.80 Some conservationist have argued that, in essence, the IGAE goes too far in abrogating the Commonwealth's responsibilities. This view has recently been put by Mr Philip Toyne who agreed with arguments that the IGAE involved a reversal of the trend towards a broader and more comprehensive role for the Commonwealth. He also saw the IGAE's scope as being too narrow and the process too slow. ^[67] For example, the agreement does not include a specific assertion by the Commonwealth of its 'right and obligation to identify, nominate and protect areas which are, or may be of World Heritage value under the Convention'. This view is somewhat difficult to reconcile with the sections of the agreement which identify the Commonwealth's role in relation to foreign policy, international agreements and the obligations under the World Heritage Convention. ^[68]

3.81 The IGAE is important in defining Commonwealth and State roles. It provides a reference point for resolving difficulties that might arise in negotiations, but it does not overcome the need to separately establish appropriate legal and administrative arrangements for each of the world heritage areas. The IGAE does not by itself provide a sufficient basis for the protection and management of world heritage areas, but needs to be supported by more detailed and specific agreements for individual areas.

3.82 Arguments about whether the IGAE unduly limits the Commonwealth will be resolved by the way it is implemented rather than by the text of the Agreement itself. The effectiveness of the IGAE and the balance that is struck between Commonwealth and State roles will vary from time to time, depending on short term political considerations. In relation to the management of world heritage areas, the Committee is concerned is to see that appropriate arrangements are put in place. This will depend on cooperation between the Commonwealth and the States on legislation, policy and management arrangements of a very specific nature in relation to specific world heritage areas. The deficiencies in the IGAE identified in some of the submissions, as far as they relate to the management of listed world heritage areas, are better addressed in more detailed Commonwealth\State agreements relating to specific areas. In this context the broad principles set out in the IGAE are adequate as a starting point, as long as they are embraced with goodwill and fairly implemented at both Commonwealth and State levels, and as long as it is also recognised that the IGAE is just a starting point.

Conclusion

3.83 The protection of world heritage areas has been in the forefront of legal battles between the Commonwealth and the States, notably Tasmania and Queensland, over their respective powers in relation to the environment. This litigation established the authority of the Commonwealth, at least in respect of world heritage. It also demonstrated that a confrontationist approach to ensuring the protection of these areas was not conducive to their being efficiently and effectively managed. The validity of Commonwealth legislation that provides an insurance against specific actions that might damage a world heritage area has been established, but the capacity of the Commonwealth to generally manage all such areas without first acquiring them has not been so established.

3.84 The process of implementing Commonwealth/State agreements for the protection and management of world heritage areas where the Commonwealth does not have direct jurisdiction reflects the reality of the distribution of Commonwealth and State powers. The best means of ensuring that the Commonwealth meets its obligations under the World Heritage Convention is provided by the combination of specific agreements for the management of world heritage areas that give effect to the provisions of the IGAE and Commonwealth legislation that can be used to ensure the protection of such areas if other measures fail. The Commonwealth should not enter into agreements with the States which provide that it will forego the use of its powers to act if it considers it necessary to do so. It must retain the option of applying its legislation for the protection of world heritage areas.

3.85 Article 5(a) of the World Heritage Convention requires States Parties to integrate the protection of world heritage areas into 'comprehensive planning programmes'. This is something the Commonwealth acting alone cannot do in those areas that are owned by the States or private land owners. The need for cooperation and agreement between the Commonwealth, the States and Territories, and other parties about the implementation of satisfactory protection measures is paramount if Convention obligations are to be fulfilled. The Commonwealth World Heritage Properties Conservation Act is available as a means of last resort to ensure protection of world heritage areas in those instances where other measures fail or are not pursued.

3.86 The arrangements put in place for the management of the Wet Tropics provide a useful model for large multi-tenure areas in State jurisdictions. These arrangements will be complete when the draft plan of management is finalised and Queensland legislation is amended as indicated by the Queensland Government. The extent to which such a model can be applied elsewhere, or might be said to already be in place, depends on the adequacy and appropriateness of existing relevant State legislation. It is for this reason that the Committee has recommended above that all such legislation be reviewed.

3.87 Whenever the World Heritage Properties Conservation Act has been used it has been in the context of a conflict. The Committee considers that negotiated settlement would be a better outcome in these situations. The Act should be used only as a last resort - as intended when it was enacted.

Footnotes

[1] UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention,

February 1996, paragraph 44(b) (vi).

[2] Boer and Fowler discuss amendments to the United States National Historic Preservation Act (Pub L. 96-315) of 1980, and subsequent regulations, that set out major requirements which United States properties must satisfy in order to be considered for world heritage nomination (B Boer & R J Fowler The Management of World Heritage Properties in Australia, Part II, undated, issued May 1996, p 45).

[3] Mr David Haigh, transcript, 15 November 1995, p 226.

[4] David J Haigh, 'Hinchinbrook - in defence of world heritage', paper given to the Second Public Interest Environmental Law Conference, Adelaide, May 1995, p 9.

[5] Environmental Lawyers Group, submission (number 40), p 1.

[6] Boer & Fowler, p 9.

[7] Richardson v Forestry Commission (1987-8) 164 CLR 261 at p 346.

[8] Stephen Mattingley, Some Legal and Administrative Aspects of Management of Natural World Heritage Areas in Australia, Honours Degree Thesis, University of Adelaide, November 1990, pp 31-2.

[9] Boer & Fowler, pp 6-7.

[10] Boer & Fowler, p 10.

[11] Environmental Lawyers Group, submission (number 40), p 7.

[12] Boer & Fowler, p 11.

[13] UNESCO, Operational Guidelines, paragraphs 44(b)(i), (ii), (iii).

[14] UNESCO, Operational Guidelines, paragraph 44(b)(vi).

[15] Environmental Lawyers Group, submission (number 40), p 9.

[16] The Commonwealth v Tasmania (1983) 158 CLR 1 at p 266.

[17] The Commonwealth v Tasmania (1983) 158 CLR1 at p 236.

[18] Atticus Fleming, 'The World Heritage Properties Conservation Act 1983', paper presented at the Australian Committee for IUCN workshop on management of Australia's World Heritage Areas, Richmond, NSW, 7-9 August 1995, p 7.

[19] Fleming, p 11.

[20] Department of the Environment, Sport and Territories, submission (number 62), p 12.

[21] Boer & Fowler, p 37.

[22] Fleming, p 6.

[23] Department of the Environment, Sport and Territories, submission (number 62), p 12.

[24] Australia, House of Representatives, 1983, Debates, vol. HR131, p 52.

[25] Australian Mining Industry Council, Australian Petroleum Exploration Association, Business Council of Australia, National Association of Forest Industries & National Farmers' Federation, World Heritage in Australia: Proposed Management Reforms, December 1994.

[26] Australian Mining Industry Council, submission (number 28).

[27] Conversely Haigh, in his paper to the Second Public Interest Environmental Law Conference (p 21), has argued that a strict application of this limitation in this legislation has allowed the Commonwealth to avoid doing its utmost to protect world heritage by not considering its responsibilities under the Australian Heritage Commission Act.

[28] B Martin Tsamenyi, Juliet Bedding & L Wall, 'Determining the world heritage values of the Lemonthyme and Southern Forests: lessons from the Helsham inquiry', Environmental and Planning Law Journal, 5, 1989, p 85.

[29] Richardson v Forestry Commission (1987-88) 164 CLR 261 at 293.

[30] Boer & Fowler, p 40.

[31] National Farmers' Federation, submission (number 7), p 5.

[32] National Farmers' Federation, transcript, 27 November 1995, p 317.

[33] Cairns and Far North Environment Centre, submission (number 53), pp 2-3.

[34] Mr David Haigh, submission (number 16), p 7.

[35] Fleming, p 17.

[36] Mr David Haigh, submission (number 16), p 6.

[37] 'Government powerless over Quaid Road', Cairns Post, 8 December 1995, p 5.

[38] Fleming, pp 19-20.

[39] Boer & Fowler, p 41.

[40] Boer & Fowler, p 139.

[41] See for example, National Farmers' Federation, transcript, 27 November 1995, p 314; Minerals Council of Australia, transcript, 30 November 1995, p 336.

[42] Australian Mining Industry Council, submission (number 28), p 17.

[43] Minerals Council of Australia, transcript, 30 November 1995, p 337.

[44] Great Barrier Reef Marine Park Authority, submission (number 59), p 1.

[45] Great Barrier Reef Marine Park Authority, submission (number 59), p 14.

[46] Great Barrier Reef Marine Park Authority, Nomination of the Great Barrier Reef by the Commonwealth of Australia for Inclusion in the World Heritage List, January 1981, p 6.

[47] Great Barrier Reef Marine Park Authority, submission (number 59), p 5.

[48] Great Barrier Reef Marine Park Authority, transcript, 27 November 1995, p 283.

[49] Great Barrier Reef Marine Park Authority, submission (number 59), p 7.

[50] Great Barrier Reef Marine Park Authority, transcript, 27 November 1995, pp 284, 291.

[51] Robert J Fowler & Ben Boer, World Heritage Project, Part 1, the Port Hinchinbrook Development, Report to the Department of the Environment, Sport and Territories, May 1996, p 27.

[52] A memorandum of understanding between the GBRMPA and the EPA in relation to the administration of the Environment Protection (Impact of Proposals) Act was signed in August 1989.

[53] Australia, House of Representatives, 1988, Debates, vol. HR160, p 1398.

[54] Fowler & Boer, p 11.

[55] Fowler & Boer, p 68.

[56] Cairns and Far North Environment Centre, submission (number 53), p 3.

[57] Mr David Haigh, submission (number 16), p 4.

[58] Boer & Fowler, p 134.

[59] Mr Peter Valentine, submission (number 29), p 2.

[60] Australian Mining Industry Council, submission (number 28), Attachment 3, p 8. This attachment is a report to the Australian Mining Industry Council by Guy Barnett & Associates, Nomination Listing and Management of World Heritage in the USA, Canada, United Kingdom & New Zealand, February 1995.

[61] Letter from Mr Alan Brown, Ambassador Permanent Delegate, Australian Permanent Delegation to UNESCO, 28 November 1995.

[62] Mr Peter Valentine, submission (number 29), pp 2, 4.

[63] Boer & Fowler, p 144.

[64] Department of the Environment, Sport and Territories, submission (number 62), p 9.

[65] 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.

[66] Australian Mining Industry Council, submission (number 28), pp 20-1.

[67] Phillip Toyne, The Reluctant Nation, ABC Books, Sydney, 1994, p 183.

[68] See for example sections 2.2.1 (i), 2.5.2.1 and schedule 8 paragraphs 1 and 5.