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

BAXTER, Mr Thomas Ian, Private capacity

[14:40]

CHAIR: I welcome Mr Tom Baxter. I hope you are au fait with the information on parliamentary privilege and the protection of witnesses et cetera.

Mr Baxter : Yes, I am.

CHAIR: Is there anything you would like to add about the capacity in which you appear?

Mr Baxter : I appear as an academic. I lecture in corporate governance and am the corporate governance course coordinator in the Tasmanian School of Business and Economics at the University of Tasmania. But the views I am expressing today are purely my own and not representative of the university or anybody else.

CHAIR: We have your submission. I invite you to make a short opening statement, and at the conclusion of your remarks I will invite members of the committee to put questions to you.

Mr Baxter : My brief background and qualifications are degrees in economics and law, honours in law, a master's in law from ANU and, most recently, a PhD that was just submitted—it is under examination—on Australian forestry regulation, which includes a chapter on World Heritage and a specific Tasmanian case study on the TWWHA.

CHAIR: So you do know one or two things about this issue!

Mr Baxter : I have worked as an academic for the past decade. Prior to that I worked as a legal officer at the Australian government's Great Barrier Reef Marine Park Authority. But in that capacity as well I had a bit to do with World Heritage in a professional capacity. So, in opening, on that point, I think it was Senator Ruston who was just talking to your previous witnesses in relation to the position of departments, and I think the phrase that was used was that they are effectively at the direction of the government of the day—and I think that is a fairly accurate description. I think it was used in the context of Forestry Tasmania, a government business enterprise. But I think it is the case even more so for government departments.

I did notice, although I did not refer to it in my submission, that the committee had asked a question on notice to the Department of the Environment. And I noticed, in looking at the department's response—the written questions on notice for a submission of 7 March on behalf of the federal environment department—that one of the questions the committee had asked, question 11 on page 4 of the department's submission, was about peer review comments from scientists and heritage experts on the government's submission. And the department's answer was: 'Departmental staff provided advice on the values and the requirements for the Australian government's submission. No independent scientific or heritage expert peer review was undertaken.'

I guess that given the position of departmental staff—with due respect to them—I would make the fairly obvious observation that they are clearly not independent, being under the direction of the government of the day, bound by the Public Service Act and so on. You have to compare the position of those departmental staff with the weight of scientific and heritage expert evidence that has been given over the years in relation to these sorts of issues—going back, I am sure, to at least the Helsham inquiry to which Peter Hitchcock referred. In terms of Mr Hitchcock's evidence, he referred to the government's proposal to the World Heritage Committee, and on reading the heritage parts of it that were within his area of expertise he considered it to be misleading, and I think he used the word 'misrepresentation', too. I had a similar reaction when I read the section that was within my area of expertise. In particular, it is under heading No. 5 in the government's proposal to UNESCO. I have focused my submission on the 'Implications for legal protection', which is on page seven of the government's proposal.

What I would like to do in my opening statement is refer briefly to those legal issues. I have also written on economic aspects, although the law is my primary area of expertise. For what it is worth I notice that you had the CFMEU listed as a prior witness, but they withdrew. I brought along a copy of an article by Jane Calvert published a week or so ago in the Saturday Mercury. The article talks to those economic issues. I am happy to table it.

CHAIR: The CFMEU were not able to attend and neither were some of the other industrial bodies. We would have been very keen to hear their perspective.

Mr Baxter : I guess I would make the observation that over a long period of time now a lot of statements on the public record by the CFMEU and the Forest Industries Association have been supportive not only of the Tasmanian Forest Agreement process generally but in particular of this world heritage extension. In reading the government's submission it seemed to me that in an overview context what we are looking at here is the government arguing that logging practices in the areas in the extension—which have had documented world heritage value going back at least to the Helsham inquiry, if not before—have degraded parts of those areas to the extent that they no longer hold outstanding universal value. Yet, in its proposal to UNESCO, so far as I can tell, the government is arguing that you can de-list these areas and they will still be given equivalent protection by the RFA regime. That seems to be the thrust of the government's argument, under the heading 'Implications for legal protection'.

In my submission I have taken issue with the fact that the EPBC Act does provide a degree of protection for those forests whilst they are inside the world heritage area, but if the excision were to occur they would revert to simply being governed by the RFA regime. I have in my submission strongly contested the government's assertion that the RFA regime provides legal protection for anything approaching the equivalent to legal protection given to areas within the world heritage area. I would be happy to expand on that if it is useful. To me it is fairly self-evident that it has been the RFA process that has seen the logging in these iconic forests, some of which are listed in the government's submission, though not with the detail one might expect for a document of this nature.

Regarding the document, from my experience working at the Great Barrier Reef Marine Park Authority, peer review of documents of far less importance than this was standard practice within that section of the Australian government. So it is surprising that there was no peer review of the government's submission. I can only presume that was for reasons of time and the deadline for getting it in.

My concern was that, for a UNESCO official in the World Heritage Committee reading the submission, some of the things said about the RFA, the Regional Forest Agreement regime, simply do not hold water in terms of the legal protection it provides for forests. It is inconsistent with the logging that they say has degraded the outstanding universal values of the areas they now want to excise.

CHAIR: We have had a lot of evidence today from quite a few people. A couple of witnesses have raised the issue of access to speciality timbers. That seems to have been the theme for a while now. Would you like to comment on that?

Mr Baxter : That goes to heading six in the government's proposal to UNESCO: the 'Implications for management arrangements'. Based on what is contained under that heading—all the references to the economic and political reasons for the government wanting to excise these areas—clearly the motivation of the government, which they took to the election, is particularly to provide access for the special species part of the timber industry.

My legal argument is that the fundamental duties of the World Heritage convention in article 4 are to 'protect, conserve, transmit to future generations' and in article 5 to rehabilitate areas of 'outstanding universal value', be that for their natural heritage or for their cultural heritage. And while I understand the arguments about special species timber are particularly important in a political context, I do not believe that they are sufficient under the convention to justify delisting areas if it is true, as you have heard from Peter Hitchcock and many others, that those areas are of outstanding universal value.

It seems to me that when you read articles 4 and 5, they do refer to economic considerations to some extent, but that extent is where they talk about countries doing all they can—this is article 4—to the utmost of their own resources. It seems to me that the World Heritage convention does make some allowance for the situation of developing countries that lack the resources that we enjoy here in Australia, but for a country such as Australia—I think Mr Beeson from the Australian Network of Environmental Defenders Offices said that we are a very well-resourced country relative to most of the rest of the world, almost all of whom are parties to the World Heritage convention. So it does seem to me that, as a very well-resourced country, we have particularly onerous obligations under the World Heritage convention. If there is a legal case within Australia that the special species sector of the industry can put forward that they have had an economic impact on them, which entitles them to legal compensation, Australia is well resourced enough to meet that need domestically.

CHAIR: And there is no way to know that World Heritage listing is in the least compatible with select logging of special timbers?

Mr Baxter : That is a matter which is open to debate. Certainly the test under Australian law is under the EPBC Act. While the areas are World Heritage listed, then legally it is possible to have logging in them if the test under the EPBC Act, as I have summarised in my submission, is: will the activity have a significant impact on the World Heritage values of the TWHHA? Legally, if the special species industry can show that they are not having any significant impact, and even if they do, then legally they could make an application to the federal environment minister, who could legally, if so minded, grant a permit to allow an activity, potentially including that sort of logging. The limitation on the federal environment minister while the areas are World Heritage listed is that any such approval must not be inconsistent with the World Heritage convention. So there is that protection currently. As soon as any areas are excised, they lose all that legal protection under the EPBC Act because forestry is the one industry which is exempt, as the government acknowledges, from that act.

CHAIR: If I remember the argument correctly, double dipping was the argument given about that.

Mr Baxter : That is right. The government argues that the RFA—they say this in their submission to UNESCO—provides equivalent protection to the EPBC Act. I strongly disagree with that, but that is their argument. I would argue that legally the only way these areas have any form of legal protection under federal law is while they are World Heritage listed. As the government said in its own submission, once the excision occurs then it falls to Tasmanian law to regulate those areas. So only Tasmanian law, and in the current political context I would not be putting too much store in Tasmania law to protect outstanding universal values.

Senator RUSTON: I want to follow up a little bit more on that, and your comments. You are putting forward an argument of law, and I get that. The argument that we have to prosecute as politicians and representatives of the people of Australia is to come up with something that is balanced. If you believe that there is a significantly added level of protection under World Heritage listing v the RFA, EPBC or even the code of conduct under which they have to operate, is that necessarily a good thing if, as you have said yourself, the specialist timber industry can mount a case that says, 'We can continue with our industry without causing any really significant long-term impact on these areas'? Wouldn't it be to the best advantage of Australia to be able to do that? It is all well and good to have a spurious legal argument—and I get that—but how do we actually allow the economy of Australia to grow? The specialist timber people have been part of the Tasmanian landscape for a very long time and, from what I can gather from all the information I have read, they are very responsible environmental operators. I am not quite sure whether you are saying it is a bad thing or whether you are just making a point of law.

Mr Baxter : I understand where the special species timber industry are coming from. My view is that fundamentally their problem has been the mismanagement of Tasmanian forestry for decades, which in my view has through what I would term as industrial clear-felling practices wasted a lot of timbers that could have gone to high-value uses, such as specialist species. On the wharf at Burnie you could see brown eucalypt woodchips and red myrtle woodchips having come out of the Tarkine. Be that as it may, I guess the current situation is the government is effectively trying to put in World Heritage terms an argument for delisting, trying to claim that these areas are not of outstanding universal value. I am not a heritage expert, but I do think there is a very compelling case put forward that the areas do have outstanding universal value. I think the government's motivation is, as you say, seeking the economic balance within the Tasmanian forest industry.

As I say, legally I do not see the need for the delisting. If the special species industry believe they can extract their wood without having a significant impact and can do it consistently with the World Heritage Convention then legally under Australian law it could occur at the moment. We do not need to be seeking a delisting that is going to have the consequence of undermining the World Heritage Convention and opening the door for other member states who may have less rigorous laws than Australia, be it Russia, which we heard of previously, or various African countries. We are effectively going out there, in order for our domestic political purposes, seeking an outcome that would set an appalling precedent for World Heritage, which is the best of the best.

Senator RUSTON: Taking another point you just briefly raised, other countries have got specialist species timber. If we effectively shut down the Australian specialist timber industry because we are punishing these guys for the past sins of others then are we doing nothing more than offshoring the degradation of potentially important trees and resources in countries that perhaps do not have the capacity to be able to protect and manage their resources to the same extent that we do in Australia. I do not think anyone would disagree that in modern times we in Australia have been very good resource managers—perhaps in the past we have not been, but right now we are. You only have to look at our fisheries and all sorts of things to see how good we are. Are we putting ourselves in a situation where we are being holier than thou in Australia and saying: 'We've been really good in Australia. We're going to grab specialist timbers from Brazil or other countries that cannot afford to have the same level of responsible environmental protection that we pride ourselves with'?

Mr Baxter : When I have been using the phrase 'special species' I have been using it in the legal context of the Tasmanian Forests Agreement Act, where it is defined as being those endemic rainforest Tasmanian species—myrtle, blackwood, sassafras and celery top pine.

Senator RUSTON: There are replacement timbers, even if they are not the same, elsewhere in the world. I understand that there are some timbers in this area that do not occur anywhere else in the world. These guys who use these gorgeous timbers to build these beautiful boats will obviously go somewhere else to try to find it. Is this possibly just offshoring it?

Mr Baxter : I am not sure they are substitutable in the sense of being endemic Tasmanian rainforest. I accept the evidence, and I think it was Peter Hitchcock who made the point, that if you whip a line at about 40 degrees south, only Tasmania, a bit of Fiordland and Patagonia are going to have that relic Gondwanan rainforest species growing in it. Yes, we have a particular obligation under the World Heritage convention to that extent. In terms of other sources of supply, you do see blackwood plantations now. There is a lot of beautiful antique blackwood furniture around in Tasmania. There are no doubt still some stocks of Huon pine and potentially other special species that can be taken from areas outside of the boundaries, including of the extension.

I would also make the point that you do need to view the role of the special species timber in the context of the broader Tasmanian forestry industry. From an economic perspective, and consistent with what is in that article I will table from Jane Calvert and statements by the CFMEU over the long term, my concern is that for most of the Tasmanian forestry industry the problem is no longer a supply-side one. They had decades of government effectively making available as much resources as they liked. The problem is really a demand driven one and that Forest Stewardship Council certification that customers are now demanding. I think there is nothing more certain to scare customers away from Tasmanian forest products than the delisting of areas that are currently in the Tasmanian wilderness World Heritage area and the starting up of logging there. That is going to send an appalling message internationally to the markets who are looking for—in Ta Ann's words, using the words of Evan Rolley, the longtime head of Forestry Tasmania—controversy-free timber. Nothing is more certain to reignite Tasmanian forest controversy than if this delisting proposal is accepted and we start logging, however selectively, in those areas.

Senator RUSTON: You raise a very good point about the undermining of credibility by those who seek to provide their own agenda.

Senator MILNE: In your submission, you said that the Australian government argued that these forests, having been logged, have had their universal values degraded. Was that occurring while the regional forest agreement was in place?

Mr Baxter : The Tasmanian Regional Forest Agreement was signed in 1997. To the extent that that forestry has been occurring since 1997, and some of it predates that, I guess, yes, it has been governed by the 20-year long Tasmanian Regional Forest Agreement. Tony Abbott has made it clear that he intends to extend the RFA and negotiate a new one. So, yes, there is no legal protection for those—

Senator MILNE: The point you are making here is that these forests were exempted from coverage by the weak EPBC Act anyway on the basis that the RFAs would look after the outstanding values. In fact, when the Australian government argued for the listing of these areas, it argued that those values were degraded by logging. That is really game, set and match, is it not?

Mr Baxter : It does seem a fundamental inconsistency to me in the government's argument that these forests no longer have outstanding universal value because forestry has degraded them. Furthermore, I would argue that to the extent there has been degradation, Australia's duty under article 5 of the convention is to rehabilitate those areas. But, yes, the government is saying delist and leave them to the same RFA regime which has seen that degradation.

Senator MILNE: Which has failed them in the past. The other point you make is about strategic logging. Are you suggesting that prior to the listing, Forestry Tasmania and others went into particular coupes with the sole view of trying to avoid those areas going into World Heritage in the first place and now using that, having driven it, to try to get them out again?

Mr Baxter : That strategic logging—essentially, pushing roads towards the end of some of those forested valleys which were previously, for example, your bite-sized chunks of the southern forests in the Picton, the Huon and the Weld, and logging towards the end of those areas first, if you like—has been alleged by some to have been done with an intention of degrading the World Heritage values or outstanding universal values so that they would not be listed in the future. What I am saying is that if UNESCO were to agree with the Australian government submission, it would have the effect of rewarding any such strategic logging that has occurred in the past. So, to my mind, it would be a retrograde step.

On the World Heritage in Danger listing, I have mentioned that on page 5. In there I put a reference to the operational guidelines which include a specific reference—one of the grounds on which the World Heritage Committee can list a property as World Heritage and in Danger. The operational guidelines specifically refer to severe deterioration of the natural beauty or scientific value of the property as by logging, firewood collection et cetera. So that would be a risk. Having heard Peter Hitchcock say that, in his view, the outstanding universal value of the enlarged area would be at risk if further logging were to occur, to me that is a strong argument. Ideally, I would like to see Australia withdraw its proposed excision. But assuming that will not happen, I think that Peter Hitchcock's evidence is a strong reason why the World Heritage Committee should at least treat it as a significant modification rather than the proposed minor modification, given that significant impact on outstanding universal values that Mr Hitchcock referred to.

Senator WHISH-WILSON: You mentioned that the department had not sought independent advice. Are you surprised by that?

Mr Baxter : I am surprised given the nature of how significant this move by Australia to UNESCO is. From my experience in the Great Barrier Reef, I saw scientific documents going out to peer review relating to matters far less significant than excision of part of a World Heritage area. I can only presume the government ran out of time to do what should be a necessary and essential requirement of any such application. Compare that to the weight of scientific evidence over the years regarding the values of these areas.

Senator WHISH-WILSON: Senator Ruston expressed some frustration earlier that we did not have more witnesses who supported the extension being withdrawn. I share a similar frustration that we do not have any experts here supporting that case. I suspect we would have if we were take this to legislation—

Senator RUSTON: I will get you some for Canberra, okay. Would you have supported the application for the 2013 boundary changes to have been conducted under a significant change instead of a minor change?

Mr Baxter : That is an interesting issue. The relevant terms in the operational guidelines are the two tests. It has the size and there is impact on outstanding universal value. Mathematically, I would agree that this change relative to the size of the previous one is a proportionately smaller change, this reduction, than the previous increase. I think it is the second part of that test that is significant, as to whether it is a minor or significant modification—that is, the effect on the outstanding universal value. To treat the property now as including the expanded areas, I would argue it is a significant impact.

Senator RUSTON: Back to 2013. You said it passed the significant test on size. Are you saying it did not pass the significant test in relation to the impact on outstanding universal values?

Mr Baxter : Only in the context of a convention which is designed with primary obligations to protect, conserve and transmit to future generations. I imagine, and I am speculating here, that the World Heritage Committee took the view that they could treat it as a minor modification because it was not detracting from the outstanding universal value of the property.

Senator RUSTON: So it is only detracting from the outstanding universal value; it cannot enhance. Enhance does not become significant. If you enhance it, that is minor. But if you detract from it, it is significant.

Mr Baxter : I refer you to the submission by the Australian Network of Environmental Defenders Office that has more detail on this issue than we probably have time for now.

Senator RUSTON: The legal argument from that would be that every application for a new submission would be minor because a new submission is only going to be to enhance outstanding value—is it not?

Mr Baxter : I cannot comment.

Senator RUSTON: I am confused.

CHAIR: Thank you to everyone who has attended today. That concludes today's hearing.

Committee adjourned at 15:10