Kakadu National Park

22 BUR V.B.36

Kakadu National Park (Australia)

The Secretariat recalled that the Bureau, at its twenty-first extraordinary session in November 1997, had invited the Australian authorities to provide the World Heritage Centre with any new information concerning the proposed uranium mine at Jabiluka in Kakadu National Park. The Australian authorities were requested to provide information pertaining to their efforts to ensure that the proponents of mining in the enclave, within but outside of the boundaries of the Park, address the seventy-seven environmental conditions imposed by the Government. The Bureau was informed that the mine’s proponent provide a six-monthly report to the Government on the progress which has been made in the implementation of these conditions.

The Secretariat informed the Bureau that additional information concerning the state of conservation of Kakadu National Park had been recently provided by the Australian authorities and had been made available to the Bureau as Information Document WHC-98/CONF.201/INF.12. The Secretariat mentioned a letter received from the lawyer for the Mirrar Aboriginal people who referred to the responses by the Bureau and Committee on the state of conservation of Kakadu at its twenty-first session as “entirely unsatisfactory”. The Secretariat also informed the Bureau that a submission from four scientists in Australia had been received in which they criticise the quality and process of the Environmental Impact Assessment for the proposed Jabulika uranium mine. The scientists state that the Environmental Impact Statement (EIS) largely ignores cultural heritage and calls for a new EIS to include proper assessment of the ecological and cultural impacts of the proposed mine. Furthermore, the Secretariat and the Chairperson referred to the many letters theyhad received which expressed concern about the state of conservation of Kakadu National Park and called for the inclusion of Kakadu on the List of World Heritage in Danger.

IUCN presented a detailed statement concerning the state of conservation of Kakadu. In summary, IUCN suggested that the Resolution on Kakadu, adopted at the World Conservation Congress in 1996 and the precautionary principle be used to guide IUCN’s advice to the Committee. IUCN recommended that mining activity should be deferred until the Committee is satisfied with the implementation of the seventy-seven environmental conditions and requested the necessary information and resources for IUCN to participate in a multi-disciplinary mission to the site and report to the twenty-second session of the Bureau and Committee if requested by the Bureau.   IUCN’s statement was distributed to the Bureau and is included in this report as Annex VI.

The Observers of Australia, responded with detailed statements which are annexed in full to this report as Annex VII and Annex VIII.

ICOMOS expressed the need to better assess the full diversity of cultural values, including spiritual values and living cultural traditions, at Kakadu and in the Jabiluka mining lease. ICOMOS also commented that at the time of inclusion in the List (in three stages, 1981, 1987 and 1992), nomination as a cultural landscape had not been possible. ICOMOS raised the possibility of Kakadu being considered in the future as a cultural landscape of potential World Heritage value.

The Delegate of Benin recalled that concern had been expressed about the state of conservation of Kakadu at the twenty-first session of the Bureau and the Committee in Naples, Italy in December 1997. He stressed the need for the Bureau and the Committee to now take action and make a closer examination of conditions at the site. He agreed with IUCN that a joint mission by ICOMOS and IUCN was needed to provide a clear report, to seek further information from the Australian authorities and the traditional owners and to prepare an analysis and recommendations as to whether or not the site should be included on the List of World Heritage in Danger.

The Delegate of Japan commented favourably on Australia’s management of its World Heritage properties. He agreed that it would be useful to dispatch a mission to Australia to collect further information on the state of conservation of Kakadu and to prepare a report for submission to the Bureau and the Committee in Kyoto, Japan in December. The Delegate of the United States of America similarly commented on the high level of protected area management practice in Australia, and agreed that an expert analysis would be useful. He offered his country’s assistance in the mission. The Delegate of Morocco also agreed that a mission was required and suggested that one or two Bureau members should also join the mission.

The Chairperson summarised the debate as having reached consensus on the need to proceed on the basis of the precautionary principle even in the absence of complete data. He noted that the Bureau had received detailed information from the Australian Observers, and that they had expressed the utmost co-operation and full acceptance of the precautionary principle of the Australian Government. He stated that there was also general agreement that the information about the state of conservation of Kakadu presented to the Committee and Bureau required greater clarity. Finally, he emphasised that the multi-faceted environmental, cultural and legal issues relating to the conservation of the site highlight the need for a fact-finding mission. The Australian Observer reiterated that the record of conservation at Kakadu was very good and that the Australian Government did not consider that the World Heritage values were threatened. She stated that, for these reasons, a mission would be welcomed.

The Bureau noted the extent and level of representation to it concerning uranium mining in the area of Kakadu National Park. Uranium mining in an area of high natural and cultural values is of sensitivity and potential concern. The Australian Observers had reported in detail on the progress to date in imposing conditions on mining such that it does not affect the World Heritage or other natural or cultural values in this area. Progress had been good, and the care taken to protect World Heritage values is adequate.

Because of the importance, complexity and sensitivity of the issue, however, the Bureau proposed that a mission to Kakadu be undertaken by a team headed by the Chairperson of the World Heritage Committee with the participation of the Director of the World Heritage Centre, IUCN and ICOMOS. This mission would examine the situation further, have discussions with relevant Aboriginal groups, officials, non-governmental organisations and the mining company, and report to the Bureau and Committee sessions in November-December 1998.

22 COM VII.28

SOC: Kakadu National Park (Australia)

VII.28 Kakadu National Park (Australia)

The twenty-first sessions of the World Heritage Committee and Bureau examined reports on the state of conservation of Kakadu National Park from the Australian authorities and the World Conservation Union (IUCN) in 1997. Reports were also examined by the twenty-second session of the Bureau of the World Heritage Committee in June 1998. The reports from IUCN noted potential threats from the proposal to commence construction of a uranium mine on the Jabiluka Mineral Lease within one of the three enclaves in the World Heritage property.

The Commonwealth Government of Australia provided reports to demonstrate its commitment to the conservation of World Heritage values of Kakadu National Park. The reports detailed the assessment and approvals process that has allowed development of the Jabiluka uranium mine site to proceed. The reports also outlined the assessment process being conducted to determine the milling and tailing management options for the Jabiluka mine. The World Heritage Centre had received many protest letters concerning the Jabiluka mine from around the world.

The Chairperson recalled that the twenty-second session of the Bureau in June 1998, requested that an expert mission be fielded to Kakadu National Park, Australia and that the report of the mission be presented to the twenty-second extraordinary session of the Bureau and the twenty-second session of the Committee.

The Chairperson recalled that the mission report (WHC-98/CONF.203/INF.18) was presented to, and discussed by, the twenty-second extraordinary session of the Bureau. Furthermore he noted that the Bureau had agreed upon a number of recommendations and that two of the advisory bodies, IUCN and ICOMOS, had made statements on the subject. He recalled that the mission had been led by the former Chairperson of the Committee, Professor Francioni (Italy). He thanked Professor Francioni for the leadership he had provided in examining the state of conservation of Kakadu National Park and thanked the other six members of the mission team - the Director of the World Heritage Centre, P. Dugan (IUCN), P. Parker (ICOMOS), J. Cook (US National Park Service) and J. Altman and R. Green from Australia. Furthermore, he thanked the Australian authorities for their considerable assistance and hospitality during the mission.

The Chairperson acknowledged the presence of Yvonne Margarula the senior traditional owner from the Mirrar Gundjehmi Aboriginal clan. The Mirrar are the traditional owners for the area covered by the Jabiluka and Ranger mining leases. Their traditional land extends into Kakadu National Park. He then invited Professor Francioni to present the main findings and recommendations of the mission and the recommendations of the twenty-second extraordinary session of the Bureau.

Professor Francioni began his presentation (Annex VI.1) by referring to the objective of the mission as being to determine and describe any ascertained and potential threats to the World Heritage values of Kakadu National Park, particularly in relation to possible threats arising from the Jabiluka uranium mining proposal. He referred to the presentation he had made at the twenty-second extraordinary session of the Bureau at which time he had outlined the mandate, organization and membership of the mission, and the process of report preparation (WHC-98/CONF.203/5).

Professor Francioni informed the Committee that the mission report focuses primarily on ascertained and potential dangers to the World Heritage values of Kakadu National Park posed by the Jabiluka mining proposal, and presents 16 recommendations. He noted that the mission had concluded, in its first recommendation, that there are severe ascertained and potential dangers to the cultural and natural values of Kakadu National Park posed primarily by the proposal for uranium mining and milling at Jabiluka. The mission therefore recommended that the proposal to mine and mill uranium at Jabiluka should not proceed.

Professor Francioni projected a map of Kakadu National Park that showed three mineral leases (Ranger, Jabiluka and Koongarra) located within enclaves of the Park. He showed a slide of the open cut uranium mine at Ranger which has been in operation for 18 years and is expected to continue operating for another seven or eight years. He then showed slides illustrating the status of the construction of the uranium mine at Jabiluka at the end of October 1998. He informed the Committee that the Jabiluka mine will be an underground mine that will however, require significant surface works and facilities. He showed the location of the mine portal that provides an entrance to the 1,800 metre mine decline currently under construction and the location of the retention pond.

Professor Francioni reported that the mission had been concerned that the construction of a mine, and mining of uranium, at Jabiluka have been presented to the Committee as a fait accompli. Furthermore he commented that the mission had noted the relevance of Paragraph 56 of the Operational Guidelines as it clearly states that States Parties should inform the Committee of their intention to undertake or to authorize major restorations or new constructions which may affect World Heritages values and before making any decisions that would be difficult to reverse.

Professor Francioni informed the Committee that the mission had seriously questioned the compatibility of mining, and particularly uranium mining and milling, with such close proximity, and upstream from, a World Heritage property. The mission regarded the Jabiluka mine as contributing threats that are posing both ascertained and potential dangers to the cultural and natural values of the World Heritage property. The mission determined that there are three issues of scientific uncertainty that lead to a finding of potential danger: (i) the degree of uncertainty concerning the quality of the hydrological modeling carried out in designing the water management plan for the mine site; (ii) the degree of uncertainty concerning the effectiveness of the concrete pasting process as a means of storing the tailings in the mine void, and (iii) the possible impacts on catchment ecosystems. The mission had therefore concluded that application of the Precautionary Principle required that mining operations at Jabiluka not proceed.

Professor Francioni referred to the visual impacts and dangers to the cultural values and living cultural heritage of Kakadu National Park. He referred to the mission's findings concerning the lack of recognition of the Kakadu cultural landscape and the need to reassess and expand the boundaries of the Park. He briefly outlined the threats to the continuation of the "joint management" regime at Kakadu National Park, referred to an overall breakdown in trust and communication between some stakeholders, and informed the Committee of the mission's recommendation concerning the Koongarra Mineral Lease, the town of Jabiru and invasive plant and animal species.

In conclusion, Professor Francioni referred briefly to the recommendations of the twenty-second extraordinary session of the Bureau and again emphasised that in spite of the dangers to the World Heritage values of Kakadu National Park, construction of the mine at Jabiluka began earlier this year and is currently progressing.

The Chairperson thanked Professor Francioni for his detailed and exhaustive presentation.

The Delegate of Thailand observed that the issue confronting the Committee was charged with emotion. He noted that the enclaves of Ranger, Jabiluka and Koongarra are excised from the World Heritage property and were therefore not included in the three stages of the nomination of Kakadu National Park in 1981, 1987 and 1992. He stated that he could not accept the Delegate of Australia's view that a World Heritage property can only be inscribed on the List of World Heritage in Danger with the consent of the State Party concerned. He maintained that the World Heritage Committee has the authority under the Convention (Article 11(4)) to place any World Heritage property threatened by serious and specific dangers on the List of World Heritage in Danger at any time in case of urgent need. He noted that Dubrovnik had been inscribed on the List of World Heritage in Danger without consultation with the State Party. He commented that the consent of a State Party is only required in the case of a property being included on the World Heritage List.

The Delegate of Thailand referred to the sovereign rights of the State Party and to the authority of the Committee to enter a site on the List of World Heritage in Danger. He asked the Delegate of Australia for confirmation concerning the proposed system of disposing of the tailings from future mining of uranium at Jabiluka. He questioned whether the system had been designed so as to ensure that there would not be the possibility of spillage, leakage or underground seepage of any contaminants at any time and under any circumstances whatsoever from the disposal site.

The Delegate of the United States of America referred to the recommendations of the twenty-second session of the Bureau being examined by the Committee, as a consensus text that tries to establish an equilibrium recognizing the rights of States Parties, the interests of the Convention and the concerns of Bureau members. She reminded the Committee that the language of the recommendations was developed over long hours of consultation between the parties concerned. She therefore moved that the recommendations be immediately adopted. The Delegate of Japan endorsed the proposal.

Following an extensive debate concerning the procedural mechanism to be used to implement the recommendations of the twenty-second session of the Bureau, the Committee adopted the following decision:

The Committee recognised the report of the mission to Kakadu National Park as being both thorough and credible. The Committee:

(i) expressed grave concern at the ascertained and potential dangers to the World Heritage cultural and natural values of Kakadu National Park which, as noted in the mission report, are posed primarily by the proposal for uranium mining and milling at Jabiluka;

(ii) noted with concern that in spite of the dangers to the World Heritage values, construction of the mine at Jabiluka began in June 1998 and is currently progressing;

(iii) has been informed by the Australian authorities that construction of the mine decline and site will proceed; however in the next six months no mining of uranium will take place, the construction of the mill will not commence and an export permit for the Jabiluka uranium will not be issued. The Committee has also been informed that the Australian authorities will act to complete the cultural heritage management plan with independent public review and they will accelerate the implementation of the Kakadu Region Social Impact Study;

(iv) noted that there is significant difference of opinion concerning the degree of certainty of the science used to assess the impact of the mine on the World Heritage values of Kakadu (notably hydrological modeling, prediction and impact of severe weather events, storage of uranium ore on the surface and the long-term storage of the mine tailings);

(v) noted that the associative cultural values, and the archaeological and rock art sites, on the basis of which Kakadu National Park was inscribed on the World Heritage List, and the ability of affected Aboriginal communities to continue their traditional relationships to the land, are threatened by the Jabiluka mine proposal; and,

(vi) emphasized the fundamental importance of ensuring thorough and continuing participation, negotiation and communication with Aboriginal traditional owners, custodians and managers in the conservation of the outstanding heritage values of Kakadu for future generations.

In view of the ascertained and potential dangers posed by the Jabiluka uranium mine that are noted in the report of the World Heritage mission to Kakadu, and have again been noted with concern by the Committee, IUCN, ICCROM and ICOMOS, the Committee decided the following:

1. In light of the concerns expressed by the Delegate of Australia, the Australian authorities be requested to provide, by 15 April 1999, a detailed report on their efforts to prevent further damage and to mitigate all the threats identified in the World Heritage mission report, to the World Heritage cultural and natural values of Kakadu National Park, Australia. The report should address these threats posed by the construction of the Jabiluka mine, by the mining of uranium ore at Jabiluka, and the alternatives for milling the ore at Jabiluka and Ranger. The report should be prepared in accordance with the intent of (vi) above. The report submitted by the Australian authorities should include a detailed update on the implementation of the cultural heritage management plan referred to in (iii) above and in the mission report.

2. Immediately upon its receipt by the Secretariat, the report referred to in paragraph 1 above, be provided to ICOMOS, ICCROM and IUCN, who will ensure that the twenty-third session of the Bureau of the World Heritage Committee, be provided with a written independent expert review concerning the mitigation of threats posing ascertained and potential dangers to Kakadu National Park by the Jabiluka mine. The expert opinion of ICOMOS, ICCROM and IUCN will be provided to the Secretariat by 15 May 1999 for immediate distribution to members of the Bureau and the Australian authorities.

3. The Australian authorities be requested to direct the Australian Supervising Scientist Group to conduct a full review of the scientific issues referred to in Paragraph (iv) above, to be provided to the Secretariat by 15 April 1999. The review will be submitted to peer review by an independent scientific panel composed of scientists selected by UNESCO in consultation with the International Council of Scientific Unions and the Chairperson of the World Heritage Committee. The report of the peer review will be provided to the Secretariat by 15 May 1999 for immediate distribution to members of the Bureau, IUCN and the Australian authorities.

4. The reports referred to in Recommendations 1, 2 and 3 will be examined by the twenty-third session of the Bureau.

5. The twenty-second session of the Committee has decided that an extraordinary session of the Committee, to immediately follow the twenty third session of the Bureau in July 1999, will be convened at UNESCO Headquarters to decide whether to immediately inscribe Kakadu National Park on the List of World Heritage in Danger.

The Representative of ICOMOS said that despite the concern expressed by the Bureau at its twenty-second session in June 1998, the construction of the mine at Jabiluka was continuing. He referred to Kakadu National Park as being in danger because the work on the mine had continued. He questioned the legality of the proposed delegation of responsibility by the Committee to the Bureau as had been expressed in the recommendations from the twenty-second session of the Bureau. He cautioned the Committee that if it was to continue the situation could become irreversible.

The Representative of IUCN read a joint statement by IUCN and ICOMOS in which they stated that the conditions exist for inscribing Kakadu National Park on the List of World Heritage in Danger (Annex VI.2). The statement also cautioned that a failure to recognise the dangers to the property would diminish the standards of, and risk prejudicing the prestige of the Convention.

The Representative of ICCROM informed the Committee that they had not been invited by the World Heritage Centre to be involved in the issue. He stated that it was important to follow the principles of the Convention. He referred in particular to ICCROM's hope that the Committee would give proper weight to the opinion of the advisory bodies in its considerations. He insisted that if scientific research provided by the advisory bodies indicates, without any doubt, that the values of Kakadu National Park are threatened, the decision is expected to be consistent with the principles previously applied and it should be inscribed on the List of World Heritage in Danger. In conclusion, he informed the Committee that ICCROM was available to assist the Committee in mediating between the different viewpoints on this issue.

The Delegate of Australia said that his Government had not stood in the path of the Committee in its consensus decision to adopt the recommendations of the Bureau. He said that while his Government could not associate itself with some of the Bureau's conclusions and judgments, it would undertake to provide the reports and reviews requested by the Committee. The Delegate of Australia then responded to a number of the concerns expressed by Committee members as to the urgency of the issue (see Annex VI.3).

The Delegate of France referred to the mission report as being impressive, complete, and highly accurate with a clear commentary having been presented by the former Chairperson.

He referred to the decision of the Committee as leaving little time for Australia to provide its point of view and commented that this was right and correct. He did say however that he was not entirely satisfied. Indeed, he noted that the time that had been granted would enable a response from the Australian authorities however, the mining company will proceed with its work. He said that he found this a little shocking as it could be interpreted as jeopardizing the Committee and its authority. He warned that the mining company might think that the Committee has given their tacit approval of the mining activity.

The Delegate of France expressed his concern that the Committee may be interpreted as not taking a stand against the fait accompli presented to it. He stated that he would not like the decision of the Committee to be contested in a divisive way in the future. He recommended that the Committee call on Australia's good will and desire to co-operate and voluntarily suspend the construction of the mine until the twenty-third session of the Bureau.

The Delegate of Cuba expressed her concern as to the seriousness of the threats to Kakadu National Park, not just to the physical heritage, but to the human heritage. She expressed her agreement with the advisory bodies that the property should be inscribed on the List of World Heritage in Danger.

The Delegate of Zimbabwe agreed with the proposal from France and acknowledged that this was a test case and a threshold issue.

He noted the high powered delegations that visited Australia to assess the Kakadu case. It comprised the Chairman of the Committee, Professor Francioni, the Director of the World Heritage Centre and other eminent persons. He declared that a procedural precedent had been set that could well be relevant to the examination of state of conservation of other World Heritage properties. He referred to the need to ensure the participation of traditional owners in the action plan and timetable in paragraphs 1 to 3, as well as in paragraphs (v) and (vi) of the preamble section of the Committee decision. This point was later supported by Benin and Hungary.

The Delegate of Hungary recommended that a dialogue with both actual or potential developers and the traditional owners be maintained and, appropriate conclusions be drawn based on such experiences by the Committee at a later stage.

The Delegate of the United States of America stated that the proposal to cease construction of the mine flowed logically from the recommendations of the Bureau adopted by the Committee.

She stated that the position of the Australian Government was understood and respected. However, she commented that the mission report raised many serious and legitimate concerns that cannot be overlooked. The Delegate of the United States of America concluded by stating that the Committee should go on record as requesting the parties concerned to voluntarily halt construction of the mine decline pending the review by the Bureau at its twenty-third session in 1999.

Following statements by the Delegates of Benin, Canada, Finland, Greece, Hungary, Italy, Japan, Korea, Lebanon, Morocco, Niger and Thailand a clear consensus emerged and the Committee adopted an additional decision:

The Committee urged the Australian authorities and Energy Resources Australia Inc. to immediately undertake, in the context of their examination of the mission report, the voluntary suspension of construction of the mine decline until the twenty-third session of the Bureau in July 1999.

The Delegate of Australia disassociated his government from the decision (see Annex VI.4).