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Environment and Communications References Committee
31/03/2014
Tasmanian Wilderness World Heritage area

BEESON, Mr Adam Renhold, Solicitor, Environmental Defender's Office, Tasmania

[11:24]

CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you, I understand. The committee has your submission. I now invite you to make a short opening statement and at the conclusion of your remarks will invite members of the committee to put questions to you.

Mr Beeson : The Environmental Defender's Office is a member of the Australian Network of Environmental Defenders Offices, on whose behalf I appear today. The Australia Network of Environmental Defenders Offices, ANEDO, consists of nine independent community legal centres each dedicated to protecting the environment by providing legal representation and advice, taking an active role in environmental law reform and policy formulation and offering a significant education program designed to facilitate public participation in environmental decision making. The committee may be interested to know that the Australian government announced in December 2013 that all federal funding for EDOs will end as at 30 June this year and this is likely to result in people who cannot afford a lawyer being unable to get advice on planning and environment matters.

ANEDO's submission to this inquiry recommends that this committee note with disapproval the failure of the government to detail the so-called degraded areas they heavily relied on in the proposal. The ANEDO submission further recommends that the proposal be withdrawn immediately. ANEDO invite this committee to condemn the actions of the Australian government in submitting this dossier seeking modification to the World Heritage area. The government should be condemned because its actions could weaken the World Heritage Convention. Furthermore, due to the inclusion of misleading statements in the dossier, it is likely to result in a negative impact on Australia's international reputation. Australia was one of the first signatories to the World Heritage Convention and should only act to strengthen it.

The lack of substance in the dossier submitted to the World Heritage Committee suggests that the government does not seriously believe this application will be successful. The government is merely going through the motions so as to avoid accusations of breaking a promise. However, this is no excuse as in future other nations will rely on the approach taken by Australia in this case. The dossier in its current form could also be read as an attempt by the Australian government to undermine the convention. The danger stems from the fact that the proposal is so weak that the government has had to rely on arguments that are antithetical to the convention, such as that the modifications can be justified on the basis of a domestic political agenda and that economic considerations can prevail over natural values. If this can apply to a country which ranks second in the UN development index with a GDP per capita in the top 10 globally, it can apply anywhere. It is also problematic that the government is essentially second-guessing the World Heritage Committee and its advisory bodies. The dossier provides no solid evidence that the original decision was based on flawed material; there are vague assertions only.

Furthermore, this proposal should not be framed as a minor modification. The most relevant decision of the World Heritage Committee in relation to the Selous Game Reserve in Tanzania suggests that altering boundaries to allow for resource exploitation, which plainly this application is, should be done via the significant modification process. It would strengthen the convention for this to be the position, as applying for a significant modification is a longer and more in-depth process than for a minor modification.

Australia's international reputation will suffer if this dossier is not withdrawn, not only because it potentially weakens the convention but also due to the inclusion in it of misleading claims, some of which we have already heard about. I point specifically to the claim concerning the legal protection afforded to threatened species. The fact is that under the EPBC Act, the primary Commonwealth environmental legislation, the only circumstances in which threatened species within an RFA region, which of course applies here, would be protected by an application of the Commonwealth management prescriptions is where the area is World Heritage listed. That completes my opening statement.

CHAIR: Thank you. I draw your attention to a statement by Senator Richard Colbeck arguing that there are tens of thousands of hectares that have been previously impacted by forestry operations and other infrastructure, which seems from my research to be at odds with an ABC fact check which found only a small percentage of the 74,000 hectares should be considered previously logged or degraded. What is your understanding of the situation?

Mr Beeson : That expertise is a little bit outside of what ANEDO is making representations on in the technical answer to the question of what is degraded and what is not. The point we make in our submission is there are no particulars on this. The government submission does not spell out where and how large those areas are nor does it spell out what terms like 'degraded' or 'disturbed' or 'logged' mean. So there can be no clarity on what the answer to that question is on the basis of what the government has provided.

CHAIR: There has been an argument put that this new area should be delisted because it has been logged, disturbed or whatever yet there is no evidence that anyone can double check to say whether or not that is true. Is that where you are coming from?

Mr Beeson : That is what I am saying. The other point to make is that the convention and the operational guidelines that are used to apply it are clear in that World Heritage areas do not have to be completely pristine. That is the case throughout a number of areas around the world and indeed in Tasmania. For example, in 2010 an area in Melaleuca was included within a World Heritage listing which had been extensively tin mined. It is a furphy to say that an area has to be completely pristine and untouched. It is also somewhat insulting to the Tasmanian Aboriginal community to an extent. It is a furphy to say that it has to be pristine and untouched in order to be included as a World Heritage area.

Senator MILNE: Trying to highlight the fact that there may be a small proportion of degraded areas is largely irrelevant given that the convention states that the area proposed must include superlative examples of this or that or whatever else. The plain point here is: when you propose something for its outstanding universal values, it does not mean that every square centimetre around it has to have the same values.

Mr Beeson : Precisely. The wording is contained; it is not an exclusive definition.

Senator MILNE: So that alone demonstrates that the federal government's proposition that areas be excluded because they may have been degraded in some cases does not undermine the outstanding universal value necessarily of the proposition?

Mr Beeson : That is completely consistent with our submission, yes.

Senator MILNE: Much has been made today about whether 10 per cent is the upper limit or not. My experience at IUCN is that that is not an official figure in any shape or form. It is guidance in terms of the upper limit. I understand that when IUCN recommended the minor boundary modification, it did so taking into account that even though it was at the upper end that it was in response to years of assessment and years of the committee calling for it. There were parameters put around it. It shows clear understanding from the expert advisory body that it was no accident. Would you like to comment on that?

Mr Beeson : It was mentioned earlier today that the IUCN made a ruling about the 10 per cent point. The IUCN does not make rulings of that kind. That is not its function; it is an advisory body. In the 2013 report that the IUCN prepared for the extension in 2013, it does talk about this issue. We have referred to that in paragraph 1 of our submission:

IUCN notes that the size of the property is around the unofficial upper level …

I think the word 'unofficial' is there because this 10 per cent figure is not found in the convention and it is not found in the operational guidelines that spell out how a minor or a significant modification is to be applied for and processed.

Following on from the previous quote, it says:

… which has been considered as typically circa 10 per cent.

So it is not accurate to frame this 10 per cent as some sort of hard and fast rule.

Senator MILNE: And in terms of offering legal expertise in this regard—the failure of the federal government to back its submission to the World Heritage Committee with detailed maps and assessment—what do you think is the likely response to that? And how reasonable is that to put to the World Heritage Committee—that they excise areas without that kind of detail?

Mr Beeson : I do not think it is helpful to the IUCN or to the World Heritage Committee to leave out that material. I would think that the IUCN and the committee would feel obliged to undertake a significant amount of additional work in response to that because that material is left out. And I would say that that is certainly not the intent you can read from the operational guidelines in terms of the sort of material state parties should provide in their applications.

Senator MILNE: A lot of the evidence we have had today is in relation to domestic considerations of the timber industry and supply to support an economic argument. As I put to the specialty timbers witnesses a few minutes ago, isn't it a fact that the domestic politics around this is not fundamental to the assessment of the World Heritage Committee? Its job is to assess whether or not an area meets the criteria against which it is listing and makes a recommendation accordingly. And the attempt to mix up domestic politics and the politics of logging in Tasmania actually shows considerable disrespect for the processes of the global committee.

Mr Beeson : I would agree with that. Our submission reflects that as well—that the whole system is premised around state parties engaging with the World Heritage Committee. In my view it is really inappropriate for state parties to be bringing in domestic political considerations to what they say to the World Heritage Committee. Really, the committee has to take the state party as it finds them and not be expected to delve into domestic political issues, which is what is occurring here and is one of the criticisms we have made of the dossier.

Senator MILNE: You list in your submission the case with regard to Tanzania seeking to adjust its boundaries to facilitate mining. Apart from Tanzania, have there been any developed countries that are signatories to the World Heritage Convention that have sought to adjust their boundaries to facilitate resource extraction, either through mining or logging?

Mr Beeson : Not to my knowledge, no. We heard earlier today about two instances in which properties have been delisted, which of course is different to changing the boundary. But the Tanzanian example is the only example, certainly under the current operational guidelines, of where there has been a minor boundary modification for resource exploitation purposes.

Senator MILNE: Can you explain the difference between the assessment process under a minor boundary modification for inclusion or for protection and an assessment to remove an area that would then become a major modification because it would be destroying outstanding universal values for extractive industries?

Mr Beeson : EDO's submission is that it is completely consistent with the convention—which, after all, is there to protect World Heritage—for the process of delisting for the purposes of resource exploitation. It is obviously going to have an impact on the outstanding universal value for that process to be more onerous than a process by which you extend World Heritage properties and thereby further the objective of the convention to protect World Heritage properties and thereby further the objective of the convention to protect World Heritage.

Senator MILNE: And is there a risk that the Tasmanian Wilderness World Heritage Area could be declared in danger if this proceeds? And what does that mean in global reputational terms?

Mr Beeson : Ultimately whether it is listed as in danger is a decision for the committee, as you know. The degree to which that risk is there, I am not in a position to comment on. I would be happy to take it on notice. Obviously for a developed country such as Australia it would be highly embarrassing and is something that in the past federal governments have spent a lot of time and effort trying to stop—for example, in the instance of the Jabiluka uranium mine. It is a bad look, is probably the best way of putting it, particularly for a developed country. That is because the whole process of World Heritage in danger is partly alerting, partly symbolism, but it is also partly a process of activating resources within the convention to help countries where their World Heritage properties are in danger, perhaps through no fault of their own or through a situation that they cannot remedy, because they simply do not have the resources.

Senator WHISH-WILSON: Just in relation to that, Mr Beeson, if that was to occur theoretically, then that information is perfectly factual to potential customers buying timber from these contested areas. They would actually be buying timber from an area that had been declared by the World Heritage Committee as an area in danger because of these logging activities.

Mr Beeson : That assumes that you can conduct logging within a World Heritage area.

Senator WHISH-WILSON: But if that does go ahead, that would be a factual basis to give that information to customers that they are buying timber from a World Heritage area that is now in danger because of the logging activities.

Mr Beeson : Nobody can dispute that an area is World Heritage listed that is, and that—

Senator WHISH-WILSON: I just want to get you on record saying that.

Mr Beeson : there has been a declaration that it is in danger. That can be referenced by virtue of a map, and you can point out where that logging is taking place.

Senator WHISH-WILSON: It is a self-fulfilling prophecy.

Mr Beeson : It is not a matter of opinion; it is a matter of fact, absolutely.

Senator WHISH-WILSON: In terms of everything you have said today, especially about the idea that these types of declarations take into account the fact there are degraded areas and the need for rehabilitation, can you give us your professional opinion on what you think the World Heritage Committee will do once they receive this from the government?

Mr Beeson : In terms of the decision they will make? I, again, would not want to speculate on what decision they would make. Obviously, the process will be followed. The IUCN will prepare a report, that will go to the committee, and they will make their decision in due course.

Senator WHISH-WILSON: Thank you.

Senator RUSTON: I just want to go back to some of the discussion you were having with Senator Milne about the lack of validity of the social and economic impact of these listings. The listing is entirely environmental, and so therefore there should be no social and economic impact taken into account. I would like to ask you for a little more about that. In terms of being able to get an application up to the body that makes the decision, are you saying that there should be no social and economic impact considerations taken into the preparation of those applications?

Mr Beeson : No, and that would not be consistent with the convention.

Senator RUSTON: Could you explain to me what would be consistent with the convention in terms of making an assessment of the social and economic impacts of an application?

Mr Beeson : The process operates by the state party making their application and, as we heard earlier today, internally in Australia there is a process under the RFA that says: if a property is going to be World Heritage listed then certain activities should be undertaken. In my view, it is reasonable for the World Heritage Committee to assume that the state party undertakes that process; otherwise, it is really following a rabbit down a hole. You can follow that rabbit as far as you like but, ultimately, the committee will take the application on its face and assume that those processes have been undertaken, particularly in a country like Australia.

Senator RUSTON: So you are saying that it is not up to the IUCN to be taking into account issues of economic or social impact; they should have already been taken into account before the application got there.

Mr Beeson : The IUCN are an advisory body, so they will prepare a report which will go to the World Heritage Committee, and the World Heritage Committee will then apply the convention in determining whether or not to approve the application. I am not sure what sort of answer you are looking for in terms of a percentage of social or environmental impact. It is a little hard to break it down and it will depend on each different situation.

Senator RUSTON: I will tell you what I am trying to get to: at what point do you believe that the concerns of those people that derive their incomes from the areas that were removed from operational use by the reserve in 2013—or even at other times—should have been heard? Who should have heard them?

Mr Beeson : The state party should hear it before they make the application.

Senator RUSTON: My understanding was that the state did hear a lot of these concerns.

Mr Beeson : Can I just add to that: it is not a matter of, if there is some allegation that someone hasn't been heard, that the World Heritage Committee should be expected to delve into that in great detail. That is just completely impractical.

Senator RUSTON: I am getting you there; I am just trying to work out basically at what point this should have been dealt with. It seems to me, from evidence given prior to you and from a number of submissions we have received from people who are not giving evidence or have not given evidence yet, that there is a concern that these social and economic issues have not been considered. I take your point that by the time it gets right up to the top of the tree maybe that is not the place for them to be considered, so I am just trying to work out where they should have been considered so that we can actually work out where it has broken down. These people feel aggrieved, and I can understand from listening to them why they would feel aggrieved. I am trying to work out where we have to fix the problem so that this does not happen again. You make a very valid point of where it needs to be heard.

I want to move on to comments in relation to this minor variation-significant variation that we have been talking about. You raised, in response to Senator Milne, the fact that this 10 per cent has never really been a 'welded in stone' number, despite the fact that it has been bandied around. You contend in your submission, at point 45:

ANEDO considers that the World Heritage Committee is likely to consider the current application to reduce the area … to be a "significant modification".

My understanding is that the amount of land that we are talking about is less than half of the land that was annexed in the 2013 application—an application which people earlier this morning said was only minor and should not have been considered significant. I am struggling to reconcile how something 12 months ago that was twice the size was not significant, and yet when there is the reversal of a decision, then only a matter of minutes later all of a sudden it has become significant.

Mr Beeson : As I said earlier, you do have to look at the objectives of the convention. I suppose the other point to make is the only example we have, which is the one from Tanzania—that was about 500 square kilometres that was proposed to be removed—went through a very tortuous process through the World Heritage Committee—

Senator RUSTON: That is 500,000 square metres?

Mr Beeson : Five hundred square kilometres, is that what I just said?

Senator RUSTON: Apples with apples: so how does that relate to my 74,000?

Mr Beeson : It is not really that important.

Senator RUSTON: It is important to me.

Mr Beeson : The point is it was one per cent of that area versus five percent in this case. My point is it is a smaller area relatively than what we are talking about here. The point only makes sense if you let me continue. In that tortuous process that the World Heritage Committee went through, what they said was, 'This really should be considered as a significant modification'. I make the point about the area really as an aside, because they said that mainly because it was a resource exploitation application. Tanzania was applying for that in order to build a uranium mine. The same logic can be applied here: it is plain that the application is being made in order to log the area. Using that same logic that the World Heritage Committee applied in Tanzania, you would say that this ought to be a significant modification application.

Senator RUSTON: You will have to excuse me for thinking that you are having your cake and eating it too. Last year it was okay for it to be minor and insignificant, and this year less than half of it has now become significant. In the eyes of the public—and I have not been involved in this as intimately as you have or others on this committee have, but I have to tell you this just looks extraordinary to me that we just make a subjective judgement: 'Okay, it wasn't minor. It was minor last year, and all of a sudden it is significant this year.' I am really struggling.

Mr Beeson : There are a lot of extraordinary things about this application. It is not consistent, if you understand the convention, to make the argument—it is not just about the land area, it is about the purpose for the modification. The whole point of this, the reason Australia signed up to it presumably, is to protect world heritage.

Senator RUSTON: [Inaudible], including last year, was to stop the logging, so for the purpose of a commercial application. So it is not significant when you stop it; it is only significant when you start it—is that what you are trying to tell me?

Mr Beeson : I totally understand your point about the perceived inconsistency, and it only really makes sense, as I have said, and I am really just repeating myself, if you consider it in a context of the objectives of the convention. That is the way the World Heritage Committee looked at it in the Tanzanian situation.

Senator RUSTON: I have two other quick points. One of them is that this morning some of our witnesses—I think from the ACF, Environment Tasmania and the Wilderness Society—when I asked them whether they believed that there were additional areas in Tasmania that should be considered for annexure to this protected area, said yes. Is that your view as well?

Mr Beeson : ANEDO does not take a view on those sorts of matters. My recollection of what was said is that there are areas that have outstanding universal value, not that anyone was particularly proposing anything relating to those.

Senator RUSTON: When I asked them whether they were, they did not deny it. The other point is this. In your opening comments you were very, very critical of what you suggested was political motivation for the 2014 application. The process in which this goes through inherently allows for some level of political involvement, and there has certainly been a lot of comments about previous applications that have also had political involvement. I believe some earlier witnesses drew the attention of the committee to the state of the Tasmanian parliament when the 2013 application was put forward. I just wonder: do you think that the 2014 application is the only application that has been made in relation to this that has had some sort of political involvement, motivation or interference?

Mr Beeson : It depends where you draw the boundaries of politics, I suppose. What is unusual—

Senator Ruston interjecting

Mr Beeson : What's that?

Senator RUSTON: You must be a lawyer. You should take up politics.

Mr Beeson : The thing that is unusual about this application is that it explicitly says this is about election commitments. That is a really slippery slope when it comes to the convention, and really is not a good example for Australia to be setting. That a state party can go before the committee and say, 'We want this extension', or whatever—we can take it out of this situation, but in this case this extension—and then to go back a year later and say, 'Because our domestic political situation has changed, we want to now have the committee reconsider the whole thing, go through that lengthy process through the IUCN and overturn the decision', is contrary to past practice, and it is contrary to the way that the convention was set up to operate.

Senator RUSTON: So the fact that this particular government was honest enough to make a comment to that effect, when previous governments have perhaps chosen not to make it publicly, does not actually change what has happened and what has not happened. I take your point as you have taken mine, respectfully, but it does not actually change the fact that there are political motivations behind these and you have made it sound in your submission like this is the only time that political motivation has been involved simply because it has been overtly stated as opposed to subjectively occurring.

Mr Beeson : I think there is a big difference. To be making an argument in the way that it has really is very unusual and does set a precedent that I do not think is helpful for the convention.

Senator RUSTON: So we'll just kick it under the carpet, and that's okay.

Mr Beeson : You are making a whole lot of assumptions and assertions that I do not accept, and we do not have the time to delve into all of those.

Senator RUSTON: Thank you very much, Chair.

Senator WHISH-WILSON: I just wanted to make a point for the record that at the time that the original application went through, Senator Ruston, there was a very long, lengthy process involving the community coming together to form an agreement. It looked at social and economic outcomes; that was part of the process. So it is actually chalk and cheese. There was a very—

Senator RUSTON: I am more than happy to have a debate with you, I am quite happy to have a debate with the gentleman. Thank you very much.

Senator WHISH-WILSON: Sure. I just wanted to get that on record.

CHAIR: Thank you very much, Mr Beeson, for your contribution today.