Hamman, Evan --- "Governing the Great Barrier Reef: Australia's obligations under the World Heritage Convention" [2021] PrecedentAULA 67; (2021) 167 Precedent 36

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GOVERNING THE GREAT BARRIER REEF

AUSTRALIA’S OBLIGATIONS UNDER THE WORLD HERITAGE CONVENTION

By Dr Evan Hamman

Australia’s Great Barrier Reef (GBR) is under pressure. Chief among the threats to the site are climate change, agricultural run-off, over-fishing and coastal development.^[1] The impacts are being felt by communities along the Queensland coastline, including the possible loss of cultural heritage of Australia’s Aboriginal and Torres Strait Islander peoples. By and large, the governance approach for the GBR has fallen short in terms of its ability to both foresee, as well as meaningfully abate, human impacts upon the marine environment. Management of cumulative impacts has not been done particularly well, and until recently there was no formal policy for responding to the accumulation of threats facing the site.^[2]

This article examines one aspect of the GBR’s complex governance architecture, that of its World Heritage values. Specifically, it underscores the importance of the duty Australia has under the World Heritage Convention^[3] (Convention) to identify, protect and conserve the Outstanding Universal Value (OUV) of the site. This article explores the nature of Australia’s World Heritage Convention obligations, their application in domestic law, and the possible ramifications of an ‘in danger’ listing for the site.

THE OUTSTANDING UNIVERSAL VALUE OF THE GBR

The GBR was inscribed on UNESCO’s World Heritage List in 1981. At the time, the International Union for Conservation of Nature (IUCN) – an advisory body under the Convention – concluded:

‘[I]f only one coral reef site in the world were to be chosen for the World Heritage List, the Great Barrier Reef is the site to be chosen.’^[4]

Prior to its listing, the GBR had been declared a national marine park, with a dedicated Great Barrier Reef Marine Park Authority (GBRMPA) established under the Great Barrier Reef Marine Park Act 1975 (Cth). To complicate governance further, a Queensland marine park, under the Marine Parks Act 2004 (Qld), runs the length of the GBR coastline covering intertidal areas. Consequently, the GBRMPA and the Queensland State have for many years shared management of the coastal zone.

A key concept for the protection of the site is that of OUV, defined under the Convention as:

‘[C]ultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity.’^[5]

At the time of inscription, there was no requirement to adopt a statement of OUV for the GBR. In 2012, however, a retrospective statement was adopted, as was the case for several other Australian World Heritage sites.^[6] The statement of OUV now serves as a key reference point for the ongoing protection and management of the GBR.^[7]

OBLIGATIONS UNDER THE CONVENTION

The World Heritage Convention was adopted in November 1972 and Australia was one of the first nations to ratify it in August 1974. The Convention is comprised of 38 Articles and is supplemented by the Operational Guidelines for the Implementation of the Convention (Operational Guidelines).^[8] The Operational Guidelines provide further rules relating to the protection of OUV. For example, under paragraph 172, there is an obligation to notify UNESCO of any intention to authorise major restorations or new constructions affecting a site.^[9]

Unlike other treaty regimes (such as the Ramsar Convention^[10] and the Biodiversity Convention^[11]), the World Heritage Convention does not have a conference of the parties. Instead, decisions are made via a 21-member rotating committee on the advice of the IUCN, the International Council on Monuments and Sites and the International Centre for the Study of the Preservation and Restoration of Cultural Property.^[12] In recent times, the Committee has reportedly ignored the advice of advisory bodies, allowing politicisation to permeate decision-making.^[13]

Articles 4, 5 and 6 of the Convention provide the substance of the commitments made under this Convention. Article 4 establishes a duty that each State has to ensure the identification, protection, conservation, presentation and transmission to future generations of its World Heritage. Australia is obliged to do ‘all [it] can’ and ‘to the utmost of its own resources’ to this end. Article 5 shifts the focus from the general to the specific, asking States, as far as possible, to:

• Adopt policies that integrate heritage into their domestic planning regimes;

• Establish services for the protection of heritage;

• Conduct research and develop methods to counteract dangers to heritage; and

• Take such ‘legal, scientific, technical, administrative and financial measures’ as may be necessary for heritage protection.

Finally, Article 6 emphasises that the protection of World Heritage rests with the ‘international community as a whole’, and, importantly, that individual States should avoid taking deliberate measures which might damage sites both directly and indirectly.^[14]

Interpretation of Australia’s obligations

In Australia, there has been, and continues to be, debate about the nature of Articles 4–6. In 1983, in the Tasmanian Dam Case,^[15] Gibbs CJ surveyed the text of the Convention (including the preparatory material) and concluded that there were no relevant obligations imposed on the Commonwealth.^[16] Justice Mason, in contrast, found that the Convention did impose binding obligations on Australia, in particular through Articles 4 and 5.^[17]

In the 2016 Federal Court decision of Australian Conservation Foundation Incorporated v Minister for the Environment^[18] (ACF v Minister for the Environment), Griffiths J accepted that Articles 4 and 5 constituted ‘obligations’,^[19] but reasoned that the Commonwealth had considerable latitude as to how and when it applied them.

Indeed, not every nation is likely to interpret the provisions of the Convention in the same way. As Anton and others have noted, the interplay between international and domestic law can present as a ‘basic practical problem’ and one whereby results are likely to be different in domestic and international courts:

‘The international obligation will prevail before international tribunals. Within municipal courts, however, the situation is much more complex and a state’s constitutional arrangements and legal system will be determinative of which law – international or municipal – is accorded priority in the event of conflict.’^[20]

Australia’s current approach is set out in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The EPBC Act categorises a World Heritage site as a matter of national environmental significance (MNES). Actions which have, or are likely to have, significant impacts on an MNES will require assessment and approval before they can proceed.^[21] Moreover, under s137 of the Act, in deciding whether to approve an action, the Minister for the Environment (Minister) must not act inconsistently with Australia’s obligations under the Convention.

In ACF v Minister for the Environment, Griffiths J considered the effect of s137 and took the view that it was sufficient that the Minister be ‘mindful’ of the prohibition. His Honour concluded that the ACF had failed to establish a clear breach of s137,^[22] pointing out, among other things, that:

‘Arts 4 and 5 [of the Convention] give considerable latitude to [Australia] as to the precise actions they may take to implement their “obligations”’.^[23]

On the related question of ‘inconsistency’ which also arises under s137, Mortimer J noted in Friends of Leadbeater's Possum Inc v VicForests:

‘[I]t is clear that a statutory imperative to act “not inconsistently with” is intended by Parliament to be to some extent a softer requirement than an imperative to act “in accordance with”. The intention is to give the responsible Minister more flexibility to impose conditions which, for example, may not be the subject of Australia’s obligations under [international Conventions], but are nevertheless conditions that are “not inconsistent with” those obligations.’^[24]

IMPLICATIONS OF AN ‘IN DANGER’ LISTING

Interpretation by the courts indicate a relatively high degree of flexibility regarding the Commonwealth’s obligations under the Convention. It is worth pondering, however, the extent to which that position may shift if the GBR is listed as ‘in danger’ under the Convention. Might it, for example, impose any further or more stringent obligations upon the Commonwealth to conserve the OUV of the GBR? And, moreover, how might the Commonwealth react in terms of funding, plans for future development, and its current strategy for addressing climate change? It is to those questions we now briefly turn.

Could the GBR be included on the list?

As recently as June 2021, UNESCO raised the possibility that the GBR could be included on the ‘In Danger List’. A draft decision put before the Committee advised that the GBR was ‘facing ascertained danger, according to Paragraph 180(a) of the Operational Guidelines’.^[25] UNESCO’s arguments made a direct link to the Commonwealth’s Reef 2050 Plan:

‘It can be concluded that, despite many positive achievements by [Australia], progress has been insufficient in meeting key targets of the Reef 2050 Plan. The Plan requires stronger and clearer commitments, in particular towards urgently countering the effects of climate change, but also towards accelerating water quality improvement and land management measures.’^[26]

Article 11(4) of the Convention provides for the creation of the ‘In Danger List’. The more important details of the process, however, are established under the Operational Guidelines. The Guidelines establish a process for monitoring the ‘state of conservation’ of World Heritage sites. Within the same part, they also envisage the use of the List of World Heritage in Danger in certain limited instances. Accordingly, the use of an ‘in danger’ listing is closely linked to the deployment of other ‘monitoring tools’ under the Convention, in particular the practice of reactive monitoring.

Reactive monitoring is the process of reporting by UNESCO and the advisory bodies on particular World Heritage sites which are facing threats. The process is enshrined in the Convention framework in order to assist in arresting the decline of World Heritage sites – for example, through improved technical cooperation and increased attention – aimed at preventing the deletion of a property from the World Heritage list altogether.

Where a property like the GBR has been identified as under threat, for example through the notification or lobbying of NGOs, or via a reactive monitoring mission, then it is open to the Committee to consider whether the property should be listed as ‘in danger’. The Committee may only do so, however, if the criteria set out in paragraphs 177–82 of the Operational Guidelines are met.

Chief among these is the criterion that the property is threatened by serious and specific danger and that intervention is necessary to ensure the conservation of the site. Categories of danger are separated into ‘ascertained’ or ‘potential’ danger, the former of which includes specific and proven imminent danger, including a serious decline, for example, in the natural beauty or scientific value of the site, or human encroachment on the boundaries or on upstream areas threatening the integrity of the location.

Potential danger, on the contrary, is where the property is faced with major threats which could have deleterious effects on its inherent characteristics. Examples include any modifications to the legal protective status of the area, inadequate management planning or management systems, and threatening impacts of climatic, geological or other environmental factors.

It is arguable that both ascertained and potential danger could be applied to the GBR’s situation. In June 2021, however, on the basis of the current condition of and the long-term outlook for the GBR, UNESCO concluded that there can be ‘no possible doubt’ that the GBR is facing ascertained danger. Other recent examples where ascertained danger has been concluded include Russia’s proposal to construct a gas pipeline through a World Heritage site,^[27] and illegal poaching of timber in Thailand.^[28]

The fallout of a GBR ‘In Danger Listing’

The past decade saw early indicators of the June 2021 threat of an ‘in danger’ listing of the site: increased attention from NGOs, the IUCN and UNESCO – including a week-long reactive monitoring mission in 2012 – and substantial scientific reporting on the deterioration of the GBR by the GBRMPA. The Commonwealth Government argued that the proposed listing was without appropriate consultation (and due process).^[29] In reply, UNESCO noted the global situation facing coral reefs, as well as the enormous amount of scientific data showing declines in the GBR over the last decade produced by, among other entities, the GBRMPA through its outlook reports.^[30]

As it played out, in July 2021 Australia successfully managed to convince the other members of the Committee not to list the GBR as ‘in danger’. Australia was required, however, to accept a second reactive monitoring mission led by UNESCO and the IUCN focusing on whether governance arrangements are effectively protecting the GBR from the impacts of climate change.^[31] By 1 February 2022, Australia is also requested to provide an updated report on the state of conservation of the GBR.

So, what might all this mean for the future of the GBR? Scientifically speaking, the GBR is clearly a system under pressure. Whether it is labelled ‘In Danger’ by an international institutional framework is of course another matter. Australia has little to gain from inclusion on the ‘In Danger List’ in terms of technical expertise or resource cooperation. Moreover, the GBRMPA has one of the best researched and most highly technical approaches for managing coral reefs anywhere in the world. Its approach to park zoning – used in combination with other layers of marine spatial planning – is unparalleled and is considered best practice when it comes to the day-to-day management of marine World Heritage.^[32]

Other reasons may be at play. One could surmise, for instance, that the refusal to accept an ‘in danger’ listing is due to the fact that this would reflect poorly on Australia's conservation reputation, in terms of the GBR, World Heritage and global conservation more generally. A related possibility is that the value of tourism to the site would fall considerably, though no comprehensive modelling predicting this seems to be available.

Another plausible argument is that Australia might lose its ‘social licence’ to continue coal and gas extraction, as researcher Tiffany Morrison has suggested:

‘If the reef goes on the “in danger” list, the social licence for the government to approve more fossil fuel extraction falls over. This is not about tourism. This is about the social licence’.^[33]

In terms of new (or perhaps amplified) obligations on Australia, the inclusion of the GBR on the ‘In Danger List’ opens up additional reporting requirements. Aside from the fact that the duty to conserve the GBR may take on greater urgency,^[34] and that there is arguably a need for advanced ‘legal, scientific, technical, administrative and financial measures’,^[35] there is also likely to be additional scrutiny from the Convention bodies on a more regular basis.

Paragraphs 190–1 of the Operational Guidelines provide for an annual review of the state of conservation of properties on the ‘In Danger List’, including ‘such monitoring procedures and expert missions as might be determined necessary by the Committee’.^[36] In ‘consultation’ with Australia, the Committee may then decide that additional measures are required to conserve the GBR. In a more extreme scenario, the Committee may consider deleting the GBR from the World Heritage List altogether – a rare action which has only been taken on three other occasions in the 50-year history of the Convention (most recently in 2021, for the maritime mercantile City of Liverpool).

CONCLUSION

The impacts on the GBR from climate change – chiefly in the form of coral bleaching – cannot be ignored.^[37] The emerging question, in terms of World Heritage debates, seems to be how comprehensively Australia’s governance approach (especially the Reef 2050 Plan) addresses those threats.^[38]

The threat of an ‘In Danger Listing' has once again become imminent for Australia. But what would it achieve in terms of improved law and governance for the GBR? And how might a listing affect Australia’s ongoing obligations under international law (noting the Commonwealth’s latitude in how to apply them)?

Answers to these questions are largely speculative, yet one thing is perhaps certain: UNESCO and the IUCN have once again tightened the focus on Australia when it comes to the GBR. The fact that Australia cares so deeply about the ‘In Danger List’ seems to play directly into this influence and continues to strengthen the hand of a treaty regime seen in the past as being relatively toothless.

At the time of writing, the author was working as a contractor for the Commonwealth Department of Agriculture, Water and the Environment. The views in this article reflect the author’s own independent research and do not in any way represent the views of the Commonwealth Government.

Dr Evan Hamman is a senior lecturer in law at Queensland University of Technology and holds a Master’s degree in Environmental Science and Law. His PhD research investigated the role of non-state actors under the UNESCO World Heritage Convention. EMAIL [e-mail].

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^[1] GBRMPA, Outlook Report 2019 (Report, 2019) <https://www.gbrmpa.gov.au/our-work/outlook-report-2019>.

^[2] E Hamman, U Baresi and K Vella, ‘Cumulative impacts and strategic environmental assessment: Policy development for Australia’s Great Barrier Reef’ in JAE Blakley, AE Jill and DM Franks (eds), Handbook of Cumulative Impact Assessment, Edward Elgar Publishing, 2021, 123–39.

^[3] Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) (World Heritage Convention).

^[4] IUCN, ‘IUCN Technical Review, World Heritage Nomination for Great Barrier Reef, 1981’ (1981) <https://whc.unesco.org/document/152856>.

^[5] UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (Guidelines, 10 July 2019) (Operational Guidelines) [49] <https://whc.unesco.org/en/guidelines/styles.xml>.

^[6] UNESCO World Heritage Centre, ‘8E: Adoption of retrospective Statements of Outstanding Universal Value’ (15 June 2012) <https://whc.unesco.org/archive/2012/whc12-36com-8Ee.pdf>.

^[7] Operational Guidelines, above note 5, [51].

^[8] Ibid.

^[9] Australia breached this requirement in 2010 with respect to a fossil fuel development on Curtis Island. See E Hamman, ‘The role of non-state actors in promoting compliance with the world heritage convention: An empirical study of Australia's Great Barrier Reef’, PhD thesis, Queensland University of Technology, 2017 <https://eprints.qut.edu.au/114125/>.

^[10] Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2 February 1971 (entered into force 21 December 1975) (Ramsar Convention).

^[11] Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993) (Biodiversity Convention).

^[12] Australia has enjoyed five mandates (among the highest number of any State) to the World Heritage Committee: 1976–1983; 1983–1989; 1995–2001; 2007–2011; and 2017–2021. A mandate on the Committee provides the State with voting rights and the ability to shape World Heritage governance.

^[13] L Meskell, C Liuzza, E Bertacchini and D Saccone, ‘Multilateralism and UNESCO World Heritage: Decision-making, States parties and political processes’, International Journal of Heritage Studies, Vol. 21, No. 5, 2015, 423–40.

^[14] These obligations have been paraphrased for the purposes of this article. For a fuller legal interpretation, see the analysis by B Boer, ‘Article 3: Identification and Delineation of World

Heritage Properties’ in F Francioni and F Lenzerini (eds) The 1972 World Heritage Convention: A Commentary, Oxford University Press, 2008, 85–102.

^[15] Commonwealth v Tasmania (‘Tasmanian Dam case’) [1983] HCA 21.

^[16] Ibid, [109] (Gibbs CJ).

^[17] Ibid, [34] (Mason J).

^[18] [2016] FCA 1042.

^[19] Ibid, [37].

^[20] DK Anton, JI Charney, P Sands, TJ Schoenbaum and MK Young, International Environmental Law: Cases, Materials, Problems, LexisNexis, 2007, 302.

^[21] EPBC Act, ss12–15A.

^[22] See also A Edgar and R Thwaites, ‘Implementing treaties in domestic law: Translation, enforcement and administrative law’, Melbourne Journal of International Law, Vol. 19, No. 1, 2018, 24–51.

^[23] ACF v Minister for the Environment, above note 18, [199].

^[24] Friends of Leadbeater's Possum Inc v VicForests [2018] FCA 178, [215].

^[25] UNESCO World Heritage Committee, ‘State of conservation of properties inscribed on the World Heritage List’, Draft Decision on GBR: 44 COM 7B.90 (21 June 2021) 86 <https://whc.unesco.org/archive/2021/whc21-44com-7B.Add-en.pdf>.

^[26] Ibid, 85.

^[27] UNESCO World Heritage Committee, Golden Mountains of Altaï (Russian Federation) 2015, Decision: 39 COM 7B.21 <https://whc.unesco.org/en/decisions/6278/>.

^[28] UNESCO World Heritage Committee, Dong Phayayen-Khao Yai Forest Complex (Thailand) 2015, Decision: 39 COM 7B.17 <https://whc.unesco.org/en/decisions/6274/>.

^[29] The Hon Sussan Ley MP, Minister for the Environment, 'Australia challenges UNESCO draft reef recommendation [sic]’ (Media release, 22 June 2021) <https://minister.awe.gov.au/ley/media-releases/australia-challenges-unesco-draft-reef-reccommendation>.

^[30] G Readfearn, ‘UN official rejects Australia’s claim it was told Great Barrier Reef wouldn’t be put forward for “in danger” list’, Guardian Australia (23 June 2021) <https://www.theguardian.com/environment/2021/jun/23/un-official-rejects-australias-claim-it-was-told-great-barrier-reef-wouldnt-be-listed-as-in-danger>.

^[31] UNESCO World Heritage Committee, Decisions adopted during the extended 44th Session of the World Heritage Committee (Fuzhou (China)/Online meeting) 2021, Decision: 44 COM 18, 186 <https://whc.unesco.org/archive/2021/whc-21-44com-18-en.pdf>.

^[32] JC Day, RA Kenchington, JM Tanzer and DS Cameron, ‘Marine zoning revisited: How decades of zoning the Great Barrier Reef has evolved as an effective spatial planning approach for marine ecosystem-based management’, Aquatic Conservation, Vol. 29, 2019, 9–32.

^[33] Cited in G Readfearn, ‘Whether or not the Great Barrier Reef is listed as “in danger” won’t alter the fact it is at risk from climate change’, Guardian Australia (23 July 2021) <https://www.theguardian.com/environment/2021/jul/23/whether-or-not-the-great-barrier-reef-is-listed-as-in-danger-wont-alter-the-fact-it-is-at-risk-from-climate-change>.

^[34] World Heritage Convention, above note 3, art 4.

^[35] Ibid.

^[36] Operational Guidelines, above note 5, [190].

^[37] Mass bleaching events occurred in 1998, 2002, 2016, 2017 and 2020.

^[38] Some have argued that measures which fail to address such impacts present as nothing more than ’placebo policies’. See TH Morrison, N Adger, J Barnett, K Brown, H Possingham and T Hughes, ‘Advancing coral reef governance into the Anthropocene’, One Earth, Vol. 2, No. 1, 2020, 64–74.