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A Critical Examination of the World Heritage Nomination, Listing and Management Procedures in Australia

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A Critical Examination of the World Heritage Nomination, Listing and Management Procedures in Australia A Critical Examination of the World Heritage Nomination, Listing and Management Procedures in Australia BY GUY BARNETT, LL.B. A THESIS SUBMITTED TO THE FACULTY OF LAW, UNIVERSITY OF TASMANIA, IN FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF MASTER OF LAWS DEDICATION I dedicate this thesis in memory of my father, the late John S. Barnett (18 February 1927 to 25 May 1985) II DECLARATION This thesis is the result of my original research and all borrowed authorities and sources have been duly acknowledged. AUTHORITY OF ACCESS This thesis may be made available for loan and limited copying in accordance with the Copyright Act 1968. ACKNOWLEDGMENTS This thesis has been researched, prepared and written with advice and encouragement from many people. To all these people I say thank you. However, I would specifically like to express my heartfelt love and thanks to Kate, my wife. Kate has persevered with me throughout. Kate has endured the struggles, frustrations and challenges of her husband. Thank you especially for listening and being an encouragement. I am most grateful for the comments, criticism and assistance provided by my supervisor, Dr Ryszard Piotrowicz. Dr Piotrowicz has helped me stay focused. A special thanks to my typist Joslyn Paine. She has managed to cope with masses of dictation and almost indecipherable drafts and notes and still maintain her composure. I am also indebted to the long—suffering Fred and Anne Baily, who read my draft, and made copius suggestions and criticisms with a careful eye for detail. iv TABLE OF CONTENTS Dedication ii Declaration iii Acknowledgements iv Table of Contents Table of Cases Table of Legislation xi Abstract xii CHAPTER 1 - INTRODUCTION 1 CHAPTER 2- THE WORLD HERITAGE CONVENTION AND ITS LISTING PROCEDURES Introduction 4 UNESCO 6 The Preamble to the Convention 8 Articles 1 and 2 - The Cultural and Natural Heritage Identified 10 Article 3 - State Party's Pre-nomination Process 12 Articles 4 and 5 - Responsibilities to Identify, Protect and Conserve 14 Article 6 - Protection of Property Rights 19 Article 7 - International Co-operation and Assistance 20 Articles 8, 9 and 10 - The World Heritage Committee 20 Articles 11 and 12 - The Nomination Procedure 24 Articles 13 and 14 - Ancillary Organisations 29 Articles 15 to 18 - The World Heritage Fund 29 Articles 19 to 26 - Conditions for Assistance 30 Articles 27 and 28 - Educational Programs 31 Article 29 - Reporting to UNESCO 31 Articles 30 to 38 -.Miscellaneous Articles and State Sovereignty 32 What is Not in the Convention 34 Conclusion 35 CHAPTER 3- THE NATIONAL ESTATE AND ITS IMPACT ON WORLD HERITAGE LISITNG IN AUSTRALIA Introduction 38 History 39 Heritage Criteria and Assessment 43 Consultation with the Australian Heritage Commission 47 The National Estate - A New System of National Parks? 48 The Commonwealth Government Role 53 De facto Land Use Decision Making 56 Proposed Legislative Reform 57 Conclusion 62 CHAPTER 4- THE CONSTITUTIONAL FRAMEWORK Introduction 64 The Federal State Balance 66 Section 51 Powers 69 Section 51(i) - Trade and Commerce 69 Section 51(ii) - Taxation and Section 51 (vii) - Bounties 71 Section 51 (xx) - Corporations Power 71 Section 51 (xxvi) - Laws with Respect to Other Races 73 Section 51 (xxix) - External Affairs 75 Section 51(xxxix) - The Incidental Power 82 Use of Commonwealth Powers other than Section 51 83 Conclusion 85 CHAPTER 5- THE LEGISLATIVE FRAMEWORK FOR NOMINATION AND PROTECTION Introduction 89 The World Heritage Properties Conservation Act 1983 90 Background 90 Constitutional Concerns 95 The Operation of the Act 96 Identification of the Property 98 Protective Provisions and Related Sections 98 VI Ministerial Consent 103 Enforcement and Injunctions 105 Compensation 105 Tlie 1988 Amendments to the World Heritage Properties Conservation Act 107 Introduction 107 Unlawful Acts - section 9 110 Compensation - section 17 111 Enforcement by Inspectors - new section 17A, B & C 112 Miscellaneous Provisions 113 State and Territory Conservation Measures 114 The United States Nomination Procedure and Areas for Reform in Australia 115 Conclusion 118 CHAPTER 6- THE ADMINISTRATIVE FRAMEWORK FOR NOMINATION AND PROTECTION • Introduction 119 Background 120 Arrangements for Identification, Protection, Conservation, Preservation and Rehabilitation 123 The World Heritage Interim List 127 Representation at the World Heritage Committee and the New ANZECC 133 Tasmania's World Heritage Area Councils and Committees 135 Conclusion 137 CHAPTER 7- WORLD HERITAGE WORRIES IN TASMANIA Introduction 139 The Tasmanian Hare-Clark Electoral System • 140 The Philosophy and Tactics of the Conservation Movement 142 Introduction 142 The Philosophy 143 The Tactics 146 vii Early Developments - The United Tasmania Group and The Wilderness Society 148 Introduction 148 The United Tasmania Group 148 A Pressure Group or a Political Party? 151 The United Tasmania Group and the Current Green Politicians 152 The Wilderness Society 154 The First World Heritage Nomination and the Franklin Dam Dispute 158 The 1984 Demands for an Enlarged Western Tasmania National Park 164 The Tasmanian Parliamentary Accord 167 Introduction 167 The 1989 State Election 168 The Constitutionally Relevant Events of 1989 169 The Accord Document 172 The Forests and Forest Industry Strategy 178 Green Concerns with the Strategy 181 The World Heritage Area Appropriate Boundaries Report 182 The Wilderness Society Claims on World Heritage 185 Conclusion 187 CHAPTER 8- MANAGEMENT OF WORLD HERITAGE - BENDER'S QUARRY. Introduction 189 History and Background 190 World Heritage Management in Tasmania 190 History of Bender's Quarry 193 Joint Management Arrangements 195 Prelude to the Closure of Bender's Quarry 196 The 1988 Commonwealth/State Heads of Agreement 196 Production and Sales 201 Closure of Bender's Quarry - Economic Implications and Available Alternatives 202 viii Compensation 208 The Bender's Quarry Closure Procedures 211 The Controversial Legal Issues of the Bender's Quarry Dispute 213 The Status of the Cook/Groom Agreement Dated 24 November 1988 Specifically and the Status of Commonwealth and State Government Contractual Arrangements in General 216 Introduction 216 Background 217 The Commonwealth Rebuttal 222 Conclusion 225 Section 51(xvci) of the Constitution - Compulsory Acquisition of Bender's Pty Ltd Lease 227 Introduction 227 Background to the Compulsory Acquisition of Property 227 Arguments For and Against Compulsory Acquisition 229 The Issue of Natural Justice 233 Conclusion 240 CHAPTER 9- CONCLUSION 241 SELECT BIBLIOGRAPHY 245 APPENDICES 253 ix TABLE OF CASES Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd and others (1920) 28 CLR 129 Commonwealth v Tasmania (the Franklin Dam case) (1983) 46 ALR 625 or (1983) 158 CLR 1 Huddart Parker v Moorhead (1909) 8 CLR 330 Mabo and others v State of Queensland (1992) 107 ALR 1 Minister for Aboriginal Affairs v Peko—Wallsend (1986) 66 ALR 299 Minister for Arts, Heritage and Environment v Peko—Wallsend (1987) 75 ALR 218 Murphyores Inc Pty Ltd v The Commonwealth and others (1976) 136 CLR 1 or 50 ALJRW 570 Peko—Wallsend v Minister for Arts, Heritage and Environment (1986) 70 ALR 523 Queensland v Commonwealth (1988) 77 ALR 291 Queensland v Commonwealth (1989) 167 CLR 232 Queensland v Commonwealth (Koowarta) (1982) 153 CLR 88 R v Federal Court of Australia and Adamson; Ex parte WA Football League (Inc) and West Perth Football Club (1979) 23 ALR 439 Richardson v The Forestry Commission (1987) 61 ALJR 528 Richardson v The Forestry Commission (Tas) and Another (1988) 164 CLR 261 Richardson v The Forestry Commission (the Tasmanian Forests case) (1988) 62 ALJR 158 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 Tasmania v Commonwealth (1983) 46 ALR 625 or (1983) 158 CLR 1 Victoria v Commonwealth (1975) 134 CLR 338 TABLE OF LEGISLATION Administrative Decisions (Judicial Review) Act 1977 Australian Heritage Commission Act 1975 Australian Heritage Commission Amendment Act 1990 Conservation Legislation Amendment Act 1988 Crown Lands Act 1934 (Tas) Electoral Act 1906 (Tas) Electoral Act 1985 (Tas) Environmental Protection Act 1973 (Tas) Environment Protection (Impact of Proposals) Act 1974 Forestry Act 1920 (Tas) Great Barrier Reef Marine Park Act 1975 Hydro—Electric Commission Act 1944 (Tas) Land Acquisition Act 1955 Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 Mining Act 1929 (Tas) National Parks and Wildlife Act 1970 (Tas) National Parks and Wildlife Conservation Act 1975 Native Title Act 1993 Resource Assessment Commission Act 1989 Wilderness Act 1964 (USA) Public Law 88-577 World Heritage Properties Conservation Act 1983 xi ABSTRACT This thesis demonstrates that the nomination and listing procedures and subsequent management of World Heritage areas in Australia are grossly inadequate and in need of reform. The thesis intends to establish the ambiguity of the provisions of the Convention Concerning the Protection of the World Cultural and Natural Heritage (hereinafter referred to as the 'Convention') and the inconsistency that exists between it, the operational guidelines and Australian domestic legislation. It argues that the implementation of the Convention into Australian domestic law has caused a limitation of the rights traditionally attributed to the states in Australia's federal system of government. The consequences of the Federal Government ratifying more than 2000 international treaties without a rigorous review process is considered. It demonstrates that the resulting
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