Barry Dunphy.Senior Partner Clayton Utz.The World Heritage

The World Heritage Convention - Impacts
under Australian Law
2012 Australian Environmental Law Enforcement
Conference: Guarding our Heritage
Barry Dunphy
4 July 2012
• Development of the History of the World Heritage
Convention (Convention)
• Implementation of the Convention under Australian
• Relationship of the Convention with the development
of the External Affairs Power – s.51(xxix) of the
Commonwealth Constitution
• Issues for the Future
Development of the Convention
• The genesis of the Convention was a UNESCO
resolution passed as long ago as1966 that authorised
the co-ordination of the development of appropriate
principles for the scientific, technical and legal criteria
for the protection of cultural property, monuments and
• In March 1971 the Sixteenth Session of the General
Conference of UNESCO then directed the DirectorGeneral of UNESCO to prepare a draft convention
Development of the Convention
• By June 1971 a draft convention was prepared and
circulated to all UNESCO Member States
• The main focus of this draft convention was on the
protection of Cultural Heritage such as monuments,
groups of buildings and sites of universal value
• In response the United States submitted to UNESCO
a body of work that it had completed on the notion of
establishing a World Heritage Trust
Development of the Convention
• Ultimately, the work undertaken by the International
Union for Conservation of Nature and Natural
Resources (IUCN) on the development of a
convention to establish a World Heritage Trust and
the draft World Heritage Convention were combined.
The concept of “World Heritage” has clearly covered
both “cultural heritage” and “natural heritage”
• The Convention was then formally adopted on16
November 1972 at the Seventeenth Session of the
General Conference of UNESCO
Development of the Convention
• The Convention formally commenced in 1975 as per
Article 33 of the Convention being the date that was
three months after the twentieth State instrument of
ratification, acceptance or accession.
Structure of the Convention
• The Convention contains detailed definitions of what
is “cultural heritage” and “natural heritage” (Articles 1
and 2).
• The Convention imposes a number of obligations on
State Parties.
• These include to ensure the identification, protection,
conservation, presentation and transmission to future
generations of the cultural and natural heritage within
their territory (Article 4)
Structure of the Convention
• To ensure that effective and active measures are
undertaken for the protection, conservation and
presentation of cultural and natural heritage within
their territory (Article 5)
• Established the World Heritage Committee
(Committee) (Article 8) and allowed the Committee
to adopt its own Rules of Procedure
Structure of the Convention
• Established the World Heritage list (Article 11). The
Committee was also directed to establish, keep up to
date and publish a “List of World Heritage in Danger”
• Established the World Heritage Fund (Article15)
• Contained a Federal or non-unitary State Parties
clause (Article 34)
Operation of the Committee
• Under the Convention the Committee has over time
adopted very detailed Operational Guidelines. These
Operational Guidelines set out the procedures that
are to govern the inscription of properties on the
World Heritage List, the protection of World Heritage
Properties, the granting of international assistance
under the World Heritage Fund and the mobilisation
of international support for the Convention
Operation of the Committee
• The Operational Guidelines examine in some detail
the meaning of the definitions of “Cultural Heritage”
and “Natural Heritage” under the Convention. They
also discuss what is meant under the Convention by
“Outstanding Universal Value”
• The Operational Guidelines also set out the
Committee’s processes for monitoring World Heritage
Properties and the guidelines for inscription of
relevant properties on the List of World Heritage in
Operation of the Committee
• Operationally the Committee has established a subcommittee known as the Bureau to help facilitate the
work of the Committee
• The Committee is also assisted by three international
organisations who act as Advisory Bodies to the
Committee. They are the International Centre for the
Study of the Preservation and Restoration of Cultural
Heritage (ICCROM), the International Council on
Monuments and Sites (ICOMOS) and the IUCN
Success of the Convention
• This year 2012 is the 40th Anniversary of the adoption
of the Convention
• The Convention is widely regarded as being one of
the most successful UNESCO Conventions with 185
ratifications by State Parties as at March 2012.
• There are now 962 properties being 748 cultural
heritage, 188 natural heritage and 29 mixed
properties inscribed on the World Heritage List.
These properties are located in the territories of 157
State Parties
Implementation of the Convention under
Australian Law
• The first relevant enactment was the World Heritage
Properties Conservation Act 1983 (WHPC Act).
• The key elements of this legislative framework were
that there be an “identified property”, that the
Governor-General have made a relevant
Proclamation about the property in question and this
could then result in certain actions being declared to
be unlawful under the Act or by Regulation
Implementation of the Convention under
Australian Law
• In The Commonwealth v Tasmania (19830 158 CLR
1 (Tasmanian Dams Case) and Queensland v The
Commonwealth (1989) 167 CLR 232 (Rainforests
Case) the fundamental validity of the WHPC Act was
upheld but some of the Commonwealth’s legislative
actions were doubted by the High Court.
• In Richardson v Forestry Commission (1987–1988)
164 CLR 261 (Richardson) forests that potentially
were of potential World Heritage value were
Implementation of the Convention under
Australian Law
• protected during a public inquiry that was examining
whether they also should be included on the World
Heritage List. The relevant Commonwealth legislation
was the Lemontyme and Southern Forests
(Commission of Inquiry) Act 1987. Again the terms of
the Convention were relied upon to provide the
legislative basis for the interim protection measures
taken by the Commonwealth.
Implementation of the Convention under
Australian Law
• Subsequently, the WHPC Act was repealed and the
Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) became the
principal Commonwealth Act governing World
Heritage areas within Australia.
• This change by the Howard Government introduced a
degree of new degree of co-operative federalism into
the management of World Heritage issues
Impact of the Convention on Australian
Constitutional Law
• The Convention has also played a very significant
role in the development of the external affairs power
under s.51(xxix) of the Commonwealth Constitution
• In the Tasmanian Dams case it was accepted by a 4
to 3 majority of the High Court that the ratification of
the Convention by the Commonwealth itself was
sufficient to engage the external affairs power and
justify the stopping (using the WHPC Act) of the
proposed hydro-electric dam known as the
Impact of the Convention on Australian
Constitutional Law
• Gordon-below-Franklin Dam on the Gordon River
within the Tasmanian Wilderness World Heritage
Area. The proposed Dam would have flooded a large
portion of the Franklin River.
• This case was a major turning point as it dramatically
confirmed the power of the Commonwealth, using the
external affairs power, to legislate on State land
management issues as a means of fulfilling its
international obligations
Impact of the Convention on Australian
Constitutional Law
• The decision in Richardson then applied the
approach established in the Tasmanian Dams case.
The key issue was whether the legislation
implementing international obligation could
reasonably be seen to be “appropriate and adapted”
• Finally. in the Rainforests case the High Court added
to the Australian jurisprudence on the Convention by
deciding that the inclusion of a property on the World
Heritage List was conclusive of the existence of there
Impact of the Convention on Australian
Constitutional Law
• being an international obligation to protect and
conserve the listed property
Other Legal Challenges
• The EPBC Act processes have also been the subject
of specific litigation
• See for example the Friends of Hinchinbrook Society
Inc v Minister for Environment (1997) 77 FCR 153
(Full Court of the Federal Court) and the High Court’s
subsequent refusal of special leave
• Subsequently in Booth v Bosworth (2001) FCA 1453
the killing of flying foxes when they ventured outside
Other Legal Challenges
• the Wet Tropics World Heritage Area was held to
constitute a significant impact on the relevant world
heritage values of that World Heritage Area
Issues for the Future
• Who will decide what are the world heritage values of
a listed area and whether are they being threatened?
• What role will the domestic Courts have in making
such determinations and resolving such disputes?
• Who will be likely to bring such legal actions?
• What pressures will there be on the Commonwealth
Government in terms of ensuring that they are
Issues for the Future
• clearly complying with the legal obligations that are
imposed on the Commonwealth under the
• Could the Committee have a future role in influencing
future domestic land management decisions by
examining the effect of proposed developments on
World Heritage listed Australian properties?
• Is this the end of the World Heritage story under
Australian law?