Decision : CONF 204 IV.B.47
Kakadu National Park (Australia)
The Secretariat introduced the discussion by referring to the summary of recent deliberations by the Committee and its Bureau concerning Kakadu National Park contained in WHC-99/CONF.204/5 that also provided information concerning the implementation of the decisions of the twenty-second session of the Committee up until the date of finalization of the document at the end of May. The subsequent decisions of the World Heritage Committee at its twenty-second session in Kyoto in December 1998 are included in their entirety in the same working document.
In accordance with the reporting process outlined in the decisions of the twenty-second session of the Committee, a detailed report was provided to the World Heritage Centre by the Australian Government on 15 April 1999. The report is entitled “Australia’s Kakadu – Protecting World Heritage. Response by the Government of Australia to the UNESCO World Heritage Committee regarding Kakadu National Park (April 1999)” (see WHC-99/CONF.204/INF.9B). The report responds to the concerns and recommendations identified in the World Heritage mission report (see WHC-99/CONF.204/INF.9A). The Secretariat thanked the Australian authorities for having arranged for the translation and production of this report in sufficient numbers for the Bureau session and the third extraordinary session of the Committee.
A review of the scientific issues was performed by the Australian Supervising Scientist and a report entitled “Assessment of the Jabiluka Project: Report of the Supervising Scientist to the World Heritage Committee (April 1999)” was provided to the UNESCO World Heritage Centre on 15 April 1999 (see WHC-99/CONF.204/INF.9C). The Secretariat thanked the Australian authorities for having arranged for the translation of the executive summary and production of sufficient copies of this report.
The World Heritage Centre provided copies of the report included in WHC-99/CONF.204/INF.9B to ICOMOS, IUCN and ICCROM for their review. The joint and separate statements of IUCN and ICOMOS and a report provided by ICCROM were made available to the Bureau as WHC-99/CONF.204/INF.9D.
The World Heritage Centre provided copies of the report included in WHC-99/CONF.204/INF.9C to ICSU (the International Council for Science) for review by an independent scientific panel. The panel’s written review was provided to the World Heritage Centre on 14 May 1999 (see WHC-99/CONF.204/INF.9E). The Secretariat informed the Bureau of the presence of a representative of ICSU and the leader of ICSU’s independent scientific panel (ISP), Professor Brian Wilkinson.
The Chairperson thanked the Australian Government and the Australian Supervising Scientist, together with the advisory bodies, ICSU and members of the Independent Scientific panel for having provided their reports according to the very tight timeframe set by the Committee in Kyoto.
Since the preparation of the working document at the end of May, the World Heritage Centre had continued to receive further information and comments concerning the state of conservation of Kakadu National Park. The Secretariat then proceeded to briefly summarize these for the benefit of Bureau members. In doing so, the Secretariat again noted that all correspondence and reports received by the Centre concerning Kakadu National Park were transmitted to the Permanent Delegation of Australia to UNESCO for their comment. Copies were also sent to the advisory bodies and to the Chairperson for their information. In addition, many letters calling on the Committee to inscribe Kakadu National Park on the List of World Heritage in Danger have been received from individuals and organisations from around the world.
From the end of May the Centre had been informed of contacts made between the Australian Supervising Scientist, the Environmental Research Institute (ERISS) and the independent scientific panel established by ICSU. Records of phone conversations between these parties were forwarded to the Centre.
On 2 June 1999 the Chairperson of the Committee received a letter from the Chief Executive of ERA in which the Chief Executive sought to provide his perspectives on claims made by the Gundjehmi Aboriginal Corporation concerning both the physical and the cultural environment, including sites claimed by the Mirrar Aboriginal people as sacred.
On 9 June a revised submission was received from scientists from the Australian National University who responded to the Report of the Supervising Scientist. The report presents eight detailed conclusions some of which concede that some of the scientists’ concerns were met in the report of the Australian Supervising Scientist. Other conclusions made by the scientists include reference to continuing concerns.
The Chairperson of the Committee wrote to the Minister for the Environment and Heritage in Australia on a number of occasions, each time urging the voluntary suspension of the construction of the mine decline at Jabiluka as had been requested by the Committee at its twenty-second session in Kyoto. On 16 June 1999 the Chairperson provided copies of the exchange of correspondence between himself and the Minister to all members of the Committee. A summary of that exchange of correspondence is included in WHC-99/CONF.204/5.
On 25 June the Secretary of Environment Australia wrote to the Director of the Centre with reference to a letter from the Colong Foundation for Wilderness that had been received by the Centre on 22 June and which referred to some 29 mineral leases over which the Colong Foundation claimed that Kakadu’s Plan of Management does not operate. The Secretary’s detailed letter of response referred to a High Court of Australia decision in 1997 stating that Australia continues to exercise its responsibilities under the Convention and domestic World Heritage legislation in relation to these mineral lease areas and “the Minister for Environment and Heritage has stated very clearly that there will not be mining in these leases”.
Also on 25 June, the Secretary of Environment Australia provided details concerning applications for protection lodged by the Gundjehmi Aboriginal Corporation under the provisions of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 over an area at Jabiluka. The letter refers to Senator Hill as having been “unable to make a Section 9 emergency declaration for the specified area, on the basis of available evidence”. The letter goes on to state that “The Minister is now giving consideration to the application under Section 10 of the Act. This part of the Act provides for long term protection of an area”. The letter also provides details of the processes required for consideration of the Section 10 application.
On 29 June the Chairperson received a letter from Professor Nicholas Robinson, from the Center for Environmental Legal Studies at the School of Law at Pace University in New York. The letter refers to legal issues and concerns relating to the state of conservation of Kakadu National Park.
On 30 June an extract of the Report of the Australian Senate Inquiry into the Jabiluka Uranium Mine Project entitled «Jabiluka: The Undermining of Process» was received. The Report was prepared by the Senate Environment, Communications, Information Technology and the Arts References Committee.
Also on 30 June, the Centre received a further report from the Australian authorities entitled “Response to the ICSU Review of the Supervising Scientists report to the World Heritage Committee”. Following the receipt of a written request from the Permanent Delegation of Australia to UNESCO this report was provided to members of the Bureau as WHC-99/CONF.204/INF.9F.
Finally, on 6 July, a complete copy of the Australian Senate Committee report was provided to the Centre by the observer from the Australian Democrats attending the Bureau session. The report of the Australian Senate Committee inquiry into the Jabiluka Uranium Mine Project contains separate majority and minority reports. Also on 6 July, Senator Hill wrote to the Director of the Centre drawing his particular attention to the conclusion of the minority report, issued by government members.
On 7 July, the Bureau heard presentations from the Australian Minister for the Environment and Heritage, Senator the Hon. Robert Hill, (included in its entirety as Annex VI.1), the representatives of IUCN, ICOMOS and ICCROM (included in their entirety in Annexes VI.2, VI.3 and VI.4) and the leader of the Independent Scientific Panel (ISP) of ICSU (included in its entirety in Annex VI.5).
Following the above statements, the Delegate of Japan began by stating that the Bureau first needed to distinguish between two aspects of this very difficult issue, namely the scientific review aspect and the cultural aspect. Regarding the issue of scientific review, he expressed profound gratitude for the dedicated work of Professor Wilkinson and his colleagues who worked with limited time and without access to all necessary data and information. He also noted the very sincere work of the Australian Supervising Scientist. He recognized the fact that the ICSU experts’ report did not affirm the existence of any ascertained danger despite frequent reference to uncertainties or insufficiency of data and information. He also took note that the Australian Supervising Scientist accepted and agreed with a number of the recommendations contained in the ISP report, as reflected in his response to the ISP report (WHC-99/CONF.204/INF.9F).
Turning to the cultural aspect, the Delegate of Japan commented that there existed a real problem at Kakadu. He stated that he believed that the shared concerns among the Bureau members are the difficulties to assess such cultural elements as the spiritual linkages between people and nature, the impact upon living cultures as well as the impact upon the cultural landscape. He commented that it seemed that the cultural assessment is, in a sense, much more difficult than scientific assessment and stressed that such cultural factors as living culture and cultural landscapes have gained more and more weight in the work of the Committee and Bureau through the history of the World Heritage regime. In this regard, the Delegate of Japan said that he shared the serious concern presented by ICOMOS about possible serious impacts of the Jabiluka mining project upon the living culture of Mirrar traditional owners.
The Delegate of Japan noted that he had listened with great care to the presentation made by Senator Hill from the Observer Delegation of Australia. He commented that his Delegation was very interested in several points in the statement from Australia. In particular, Japan considers it to be very important that ERA have suggested to defer commercial mining at Jabiluka. He commented that if his interpretation was correct, this indicated that there would be one mine instead of the original proposal for two mines in operation at the same time. He noted that ERA was ready to postpone commercial mining at Jabiluka until such time as mining at Ranger would be terminated. The Delegate of Japan said that the new proposal from the Australian Delegation deserved, in his view, the serious scrutiny of the Bureau as its implications had relevance to various aspects of the Kakadu issue.
Finally, the Delegate of Japan underlined the need to build trust between the Aboriginal Traditional Owners and the Commonwealth Government of Australia. He commented that everyone in the Committee is seriously concerned with the break of mutual trust between the two. In this regard he wished to support the statement of ICCROM that the work of the World Heritage Committee should be to produce a positive and constructive basis according to the aim of the Convention on a longer term perspective. He concluded by stating that he believed that the real work of the Committee and the Bureau is to create good basis for the building of trust between the Aboriginal traditional owners and the Government of Australia through dialogue.
The Delegate of Italy commented on the complexity of the issues before the Bureau. He referred to the difficulties that would be faced by the Bureau and Committee as this was a new case to which other precedents did not relate. He commented that courage and imagination would need to be used without jeopardising the Convention or the image of the State Party concerned. He said that there should be no interest in finding a cosmetic solution. What was required was a real, long-term solution soundly conceived and well balanced. He noted that two of the reports submitted to the Bureau confirmed and endorsed the alarm expressed in the mission report. He said that further verification was needed. He noted that there are facts that need to be reconciled, especially from the report of the Independent Scientific Panel (ISP) established by ICSU. He referred to new concerns relating to the cultural heritage that would need to be addressed with attention to local sensitivity and international response to social and cultural change.
The Delegate of Italy said that the system for listing properties on both the World Heritage List and the List of World Heritage in Danger required the consent of the State Party except in urgent cases. He commented that in Danger listing is not a sanction and that the Committee is not a ruling court but had standards that must be set and updated. He said that there was a need to act with respect to the Convention.
The Delegate of Cuba referred to the report of the Australian Supervising Scientist as an honest statement but noted that there are things that need to be taken into account and things to be implemented. She noted that with continuing scientific uncertainties and the need for further analysis of the scientific information the situation remained the same as it was at the last session of the Committee in Kyoto, 1998.
The Delegate of Morocco thanked the advisory bodies and the ISP panel established by ICSU for their work saying that new light had been provided on an issue of paramount importance. He stated that Morocco was of the opinion that the deliberations concerning Kakadu could be considered to be a major task for the Committee. He agreed with the Delegate of Japan that the major issue was one of confidence and trust. He asked the Bureau to instill a climate of confidence and noted Morocco’s confidence in the work of the advisory bodies and the ISP panel established by ICSU. He referred to the international responsibility to find a solution that would be appropriate given that the decision will become legal case law. He concluded by commenting that the Bureau knows of other sites under more threat than that posed by the Jabiluka mine and therefore again restated the need to proceed with a real climate of trust and communication.
The Delegate of Korea referred to the heavy burden and pressure relating to the case of Kakadu National Park. He commented that this case will be precedent-setting for the future of the World Heritage Committee and will determine whether the Committee will be politically and scientifically viable in the future. He shared the view of Japan that the case referred to the relationship between people and nature and raised the question of which one comes first and noted that both are important. He noted that because of the gravity of the issue he did not want to make a hasty decision. He commented that there are still uncertainties and the need for future study. He also stated that this could be a good opportunity to build trust between experts and the State Party. The duty and responsibility of the Bureau is to urge all parties concerned to use creative ways to find a solution that would be scientifically and politically viable.
The Delegate of Benin remarked that the international community should thank Australia for having provided them with the opportunity to closely examine this new kind of situation. He indicated that, faced with this situation, Australia as a State Party, had conducted itself in a responsible manner. He said that in the future, the Committee should not have its hands tied, and it should take the necessary time before coming to a decision. He indicated that the complexity of the problems, both cultural and scientific, that were being faced, did not have a black and white attitude or solution. He recognized the spiritual importance of the land for the Aboriginal people and was of the opinion that it would be preferable to reach a consensual solution. He requested that a closer dialogue is established in Australia with the Aboriginal people and emphasized that this step could not be restricted to a timetable set by UNESCO. He also said that the Committee should determine the extent to which the dialogue between the Australian Government and the Aboriginal people be conducted, in order for a responsible opinion of the situation be obtained.
The Delegate of Hungary stated that, on the basis of present knowledge, written reports and discussions, the position of the Hungarian Government was that it cannot support the opening of the mine at Jabiluka at present. He agreed with other Bureau members that this case is new and a precedent of the greatest importance to the Bureau and Committee. He noted that the scientific review pointed to some remaining uncertainties and commented that some additional scientific investigation would need to be done before a final decision concerning the site could be made. He agreed with the statement by other Bureau members that there needs to be caution and a consensus by the Bureau. He noted that the issue has become political, both in and outside Australia.
The Delegate of Hungary noted that the Jabiluka project is proceeding in two stages and that the first stage of the project is complete. The question is whether the mining process can now begin or not. He further questioned whether archaeological investigations had been properly performed.
The Delegate of Hungary noted the importance of the Bureau’s deliberations to the Convention. He suggested that some rethinking might be required as to whether in Danger listing is the responsibility of the Bureau and Committee with or without the consent of the State Party. He gave great importance to the statement from the Australian Minister for the Environment and Heritage concerning the possible delay of mining at Jabiluka and the need to find a solution to solve the problem. He also sought a solution between the Mirrar Aboriginal people and the Australian Government.
The Minister for Environment and Heritage from Australia thanked the Bureau for their thoughtful comments. He stated that he too was looking for a constructive way to move forward. He stated that his Government is proud of World Heritage in Australia and does not shy away from its responsibilities. He noted that the case is historical and that new issues are being addressed.
The Minister questioned IUCN’s comments concerning visual encroachment to the World Heritage property. He commented that the mineral leases were deliberately left out of the World Heritage property for this reason and questioned how issues relating to visual encroachment could have a higher value now than 18 years ago. He asked how it made sense for the open-cut mine at Ranger to have been acceptable over the last 18 years and now for an underground mine to not be acceptable. He asked how such a small underground mine could be said to be a visual encroachment to a World Heritage property of 20,000 square kilometres.
In noting the Bureau’s comments concerning the now evolving concepts relating to living cultural traditions he suggested that a debate on the subject could take place but questioned where the limits of such new interpretations might lie. He questioned whether such re-interpretations can be applied retrospectively to Kakadu. He reported that the challenging issues relating to living cultures were being addressed through the assessment of potential sacred sites and the safeguarding of all identified sites at Jabiluka.
On the scientific issues, the Minister welcomed the dialogue between the Australian Supervising Scientist and the Independent Scientific Panel (ISP) established by ICSU. He said that he wanted, if possible, for all of the questions of the ISP to be answered.
In response to the comments from Japan, the Minister reported that ERA have made a commitment that mining at Ranger will be completed prior to full commercial mining at Jabiluka. This pause would give the opportunity for good faith to be established and for suspicion and distrust to be overcome. The Minister concluded by asking that a record of his statement be included in the report of the Bureau.
The Chairperson then decided to constitute an informal drafting group to be chaired by the Rapporteur, with one representative from each of the Bureau members, the Observer Delegation of Australia and a member of the Secretariat. The Chairperson asked the group to prepare draft recommendations to be discussed by the Bureau on Friday 9 July. The informal group after three sessions suspended its work. The Chairperson asked the Australian Government to provide its various oral communications to the group in a written form and make it available to all members of the Bureau meeting.
The Chairperson thanked the members of the Bureau, the Observer Delegation of Australia, the leader of the independent scientific panel (ISP) established by ICSU and the representatives of the advisory bodies for their careful consideration concerning Kakadu National Park.
On 9 July, the Australian Minister for Environment and Heritage provided the document, as requested by the Chairperson to the Bureau, with a series of additional measures that the Australian Government has developed to "enhance the existing environmental protection regime governing Jabiluka and Kakadu; address the social and economic conditions of the Aboriginal communities living in Kakadu; and provide additional assurance that the cultural values of the Park – including those of the Mirrar – are protected" (see WHC-99/CONF.204/INF.9G).
The Chairperson asked the informal drafting group to resume its work with the participation of one representative of each Bureau member.
After having reached a consensus, the informal drafting group proposed findings and recommendations for consideration and adoption by the Bureau. The Chairperson first invited general observations on the proposal. The Minister for Environment and Heritage of Australia acknowledged and thanked the Rapporteur and the Secretariat for their work commenting that it was evident that the drafting group had made an attempt to look for consensus. He said that such an approach would strengthen the Convention and good will. He noted that the recommendation included reference to some of the initiatives in the package provided to the Bureau that morning (see WHC-99/CONF.204/INF.9G). He commented that the recommendation provided a positive way forward but that he believed that some of the findings of the Bureau are not well founded. He referred to the recommendation as a reasonable document to be used as a basis for discussion at the third extraordinary session of the Committee and stated that he would like to take the opportunity at that meeting to debate the content of the recommendation in detail.
On point 1 summarizing the principal concerns and reservations of the Bureau, the Minister said that he had difficulty accepting some of the findings. On point 1(d) he was of the view that the Bureau’s findings referring to the mine’s impact on the living cultural and cultural landscape values could be questioned. On point 2 (c) of the recommendation, the Minister said that all of the recommendations of the ISP of ICSU would be accepted. He said the leader of the ISP and the Supervising Scientist had already started a dialogue in order to implement their recommendations. On point 4 of the recommendation the Minister commented that it was rather prescriptive and did not take into account that in the new information provided to the Bureau a reference group will propose and guide the process of developing the cultural heritage management plan (see WHC-99/CONF.204/INF.9G).
Following this discussion, the Bureau considered and adopted the following:
1. The Bureau,
(a) Recognized, with appreciation, that the Australian Government, Australian Supervising Scientist, advisory bodies (IUCN, ICOMOS and ICCROM) and independent scientific panel (ISP) established by the International Council of Science (ICSU) had provided the reports requested by the twenty-second session of the Committee (Kyoto, 1998),
(b) Expressed its regret that the voluntary suspension of construction of the mine decline at Jabiluka until the twenty-third session of the Bureau (requested by the twenty-second session of the Committee) had not taken place,
(c) Continued to have reservations concerning the scientific uncertainties relating to mining and milling at Jabiluka,
(d) Was concerned about the serious impacts to the living cultural values and cultural landscape values of Kakadu National Park posed by the proposal to mine and mill uranium at Jabiluka,
(e) Was concerned about the lack of progress with the preparation of a cultural heritage management plan for Jabiluka.
- 2. The Bureau wished to acknowledge the following developments in relation to the state of conservation of Kakadu National Park:
(a) The Australian Government has stated that there shall be no parallel commercial scale operation of the Ranger and Jabiluka uranium mines located in enclaves surrounded by, but not included, in Kakadu National Park (see WHC-99/CONF.204/INF.9G). The Bureau regarded the announcement of the Australian Government as a positive change to addressing the issue concerning the conservation of Kakadu National Park, although the precise meaning of the output and scale of any parallel activities at the Ranger and Jabiluka uranium mines, in particular in terms of the relative difference from the present level of production at Ranger, should be clarified by the Australian Government.
(b) There are indications that a new dialogue between the Mirrar Aboriginal people and the Australian Government has begun in relation to issues concerning the Jabiluka uranium mine and mill. The Bureau considered this to be the first essential step in finding a constructive solution to the issues raised by the UNESCO mission to Kakadu National Park.
(c) A dialogue between the Australian Supervising Scientist (ASS) and the independent scientific panel (ISP) established by the International Council of Science (ICSU) has begun to show some progress in relation to resolving some of the outstanding questions relating to scientific issues concerning mining and milling at Jabiluka.
3. The Bureau was of the opinion that confidence and trust building through dialogue are crucial for there to be any resolution of issues relating to the proposal to mine and mill uranium at Jabiluka. In particular, better dialogue needs to be established between the Australian Government and the traditional owners of the Jabiluka Mineral Lease, the Mirrar Aboriginal people.
4. The Bureau recommended that the Committee request the Australian Government, with the necessary co-operation of the Mirrar and appropriate involvement of other stakeholders, to complete the cultural heritage management plan of Jabiluka and proceed with exhaustive cultural mapping of the Jabiluka Mineral Lease and the Boyweg-Almudj site and its boundaries to ensure protection of these integral elements of the outstanding cultural landscape of Kakadu. The plan and cultural mapping work should be undertaken by senior archaeologists and anthropologists working with Aboriginal custodians within a stipulated timeframe. The archaeologists and anthropologists should report to a committee with representation from the Northern Territory’s Aboriginal Areas Protection Authority (AAPA), the Australian Heritage Commission, ICOMOS, ICCROM and the Gundjehmi Aboriginal Corporation. Their work should be submitted to independent expert scrutiny via objective and impartial review.
5. The Bureau considered that it is the clear responsibility of the Australian Government to regulate the activities of a private company, such as Energy Resources of Australia, Inc, in relation to the proposed mining and milling activities at Jabiluka and notes the commitment of the Federal and Northern Territory Governments to strengthen the regulatory basis for mining.
6. The Bureau recommended that the Committee establish a mechanism for cooperation between the International Council of Science’s (ICSU) Independent Scientific Panel (ISP), the Advisory Bodies and the Australian Government (in particular, the Supervising Scientist) in relation to resolving all of the remaining scientific issues raised by the ISP in its report (WHC-99/CONF.204/INF.9E).
7. The Bureau recommended to the Committee that the Australian Government be asked, in response to the Kakadu Region Social Impact Study (KRSIS), to facilitate a comprehensive package of social and welfare benefits, together with the Northern Territory Government, for the benefit of the Aboriginal communities of Kakadu (including the Mirrar). The Bureau also recommended that the Committee request the Australian Government to provide an update on the implementation of the Kakadu Region Social Impact Study to its twenty-third session in Marrakesh, Morocco in December 1999.
8. The Bureau recommended that the third extraordinary session of the World Heritage Committee on 12 July 1999 take full account of the information before it, including new information provided during the Bureau session and the considerations of the Bureau, in particular taking into consideration Paragraph 86 of the Operational Guidelines, in order to fulfill its mandate described in Kyoto (see Paragraph 5, page 18, WHC-98/CONF.203/18).