Peculiarities of legal protection of natural world heritage sites in Australia on the example of the Great Barrier Reef

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Introduction In the second half of the 20th century, humanity came to realise the need for special international legal and national protection of cultural and natural heritage sites. The legal reflection of this understanding realized in the adoption of the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (hereinafter referred to as the World Heritage Convention, the Convention)[127] . This international treaty creates a system of international obligations stemmed from the principle of sovereign equality of States[128] to identify, protect, promote and transmit unique natural and cultural sites to future generations. For the purpose of international legal coordination of national efforts to protect World Heritage, a special convention body was established - the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (hereinafter referred to as the World Heritage Committee, the Committee). The Committee has a rather broad mandate in matters of World Heritage protection, which includes reviewing reports on the state of conservation of sites and formulating recommendations for their protection. Analysing and considering this practice seems necessary for the proper fulfilment of the international obligations of the Russian Federation enshrined in the norms of the Convention. One of the main goals of any international legal regime is unification, i.e., application of common rules and approaches to regulation of international relations. It is therefore of particular interest to compare the main challenges in the protection of World Heritage properties in different countries and the ways they have been addressed by the World Heritage Committee. There are eleven natural World Heritage Sites in Russia, including Lake Baikal, which is unique in its characteristics (Kolobov, 2020). At present, the Baikal ecosystem faces a variety of threats: development of tourist infrastructure; liquid household waste ended up in the lake; feasible construction of hydraulic structures on the Selenga River; consequences of the Baikal pulp and paper mill and some others (Ditsevich, 2020). All these problems are under constant attention of the World Heritage Committee. (Galazii, G.I. & Votintsev, K.K., 1978). The analysis of foreign experience in the protection of World Heritage Sites mentioned above is one of the promising directions for improving legal protection regime of Lake Baikal. Australia was chosen as an object of comparison because it is one of the three countries with the largest area occupied by World Heritage Sites; some of them experience huge problems in terms of conservation. Not least, Australia was also selected for reasons of information openness of the state policy on nature protection issues and availability of relevant documents on the Internet. Moreover, legal analyses of the practice of protection of World Heritage Sites in this country are not sufficiently presented in the Russian-language literature. Thus, the subject of this article is the practice of legal protection of World Heritage properties in Australia and its assessment by the World Heritage Committee. The purpose of this paper is to extrapolate the positive Australian experience to the issues of protection of the Lake Baikal World Heritage Site in order to formulate proposals for their solution. Australian practice analysis Australia ratified the World Heritage Convention in 1974, becoming one of the first countries to enact legislation to implement the provisions of the Convention (Figgis, Leverington, Mackay, Maclean & Valentine, 2012). There are twelve natural World Heritage Sites on the territory of Australia, nominated in different years and in different ecological condition. The most famous of them is the Great Barrier Reef (hereinafter referred to as the Reef), which is inscribed on the List of World Heritage Sites (hereinafter referred to as the List) in 1981. It represents the most significant coral reef assemblage in the world, with an estimated UNESCO concentration of 400 species of coral, 1,500 species of fish and 4,000 species of molluscs[129]. The reef is visited by more than one million six hundred thousand people each year; it generates more than $5 billion in revenue and 63,000 jobs[130] . For the ongoing comparative legal analysis, the Great Barrier Reef is interesting, firstly, because it, like the Lake Baikal World Heritage Site, includes water and land areas and has a significant spatial extent. Secondly, the ecological state of the Reef faces similar natural and anthropogenic threats. To address these problems, significant financial resources are allocated from the Australian state budget, advanced organisational mechanisms are applied (including long-term development plans, strategic environmental assessment), and the effectiveness of the measures taken is subject to public evaluation. Analyses of the World Heritage Committee and the International Union for Conservation of Nature (hereinafter referred to as IUCN) decisions show that the Great Barrier Reef ecosystem has been subjected to a variety of threats mostly related to human activities over a long period of time. In 1985, the ninth session of the World Heritage Committee considered the construction of a road on the coastal reef adjacent to Cape Tribulation National Park. The Australian authorities presented the results of a three-year study (funded in the amount of about one million dollars) of the impact of road construction on the Reef ecosystem. In turn, the Committee expressed satisfaction with the quality of the research undertaken[131]. In 1994, during the examination of the Reef Report, the Committee was informed of the temporary suspension of the construction of a 1,500-bed hotel in the immediate vicinity of the World Heritage property to assess the likely impact of the construction and its consequences on the Site (Decision CONF 003 IX)[132] . On 9 November 2000, a marine vessel ran aground within the World Heritage property, damaging the Sudbury Reef (approximately 1,500 sq. m.). Following the incident, the Steering Committee took institutional measures to prevent similar situations from occurring in the future[133] . The twenty-fifth session of the Committee also considered the issue of the increased population of the crown of thorns starfish, which scientists believe is one of the causes of Reef deterioration[134] . At the same time, one of the reasons for the sharp increase in population of these marine organisms was the pollution of rivers that are tributaries of the Coral Sea with nitrogen used in agriculture; that contributed to the development of phytoplankton in sea waters being the food supply for the crown of thorns. Since 2005, the Committee's decisions on the state of the Reef have reflected climate change, which will subsequently be considered a major threat to the unique ecological system of the Reef and other natural sites (Decision 29 COM 7B.a)[135]. In the 2021 IUCN and World Heritage Centre State of the Reef Opinion[136], and Australia's 2022 State of the Reef Report[137], climate change is identified as the primary threat to the ecological condition of the Great Barrier Reef. The documents of the World Heritage protection system bodies pay special attention to the problems of construction of industrial facilities, transport marine (ports) infrastructure and other capital construction. Thus, in 2011, the Committee drew attention to the approval of liquefied gas processing projects on Curtis Island[138]. The response to these issues was further reflected in the independent assessment of Gladstone Port and the adoption of the Queensland Ports Development Strategy. Finally, one of the most significant issues posed by World Heritage bodies to the Australian Government concerns the development of mining activities at Carmichael Mine[139] . On this issue, Australia indicated that authorisation was subject to the fulfilment of all necessary conditions. A traditional requirement of the Committee for all economic projects within the World Heritage properties is to carry out various types of environmental assessment. Similar requirements have been made for Australia in relation to almost all of the above issues, however, it should be noted that Australia has achieved significant strides in strategic environmental assessment and long-term management plans, as discussed later in this article. Human-induced global warming is currently recognised as the most serious threat to the Reef. It is noted that it is responsible for coral bleaching, one of the major environmental problems (McWhorter, Halloran, Roff, Skirving, Perry & Mumby, 2022). The combination of accumulated challenges, the primary one being global climate change, has led to the threatened inscription of the Great Barrier Reef on the List of World Heritage in Danger. The Australian and Queensland State Governments appear to have taken a negative view of this scenario. In the period leading up to the forty-fourth session of the World Heritage Committee, the Australian authorities requested the Committee to undertake a monitoring mission prior to the decision to include the Reef on the List of World Heritage in Danger[140] and to organise a visit to the site by representatives of the countries on the World Heritage Committee to persuade them to vote against the proposed decision[141]. Such attitude to the possibility of inscription on the List of World Heritage in Danger on the part of States where World Heritage properties are located is quite common. It has been noted by the Committee that the public perception of this instrument is negative and looks at it as a kind of sanction[142]. At the same time, it is much more productive to perceive it as a means of ensuring the conservation of a World Heritage property, especially in circumstances where the unique natural complex is threatened by factors that the State itself cannot control[143]. Since, according to the position of the Australian authorities, the main reason for the deteriorating condition of the Great Barrier Reef is the warming of the world's oceans, which is a consequence of human industrial activity on a global scale, the inclusion of the Reef in the above List, on the contrary, will serve to consolidate international efforts to counteract global climate change. The management of the Great Barrier Reef is determined by the federal model of government organisation in Australia. The relevant powers in relation to the World Heritage Site are exercised at the level of the Australian and Queensland State Governments. The basis for the division of powers between two public legal entities is enshrined in the Great Barrier Reef Intergovernmental Agreement[144]. The first such agreement was concluded in 1979 (so called Emerald Agreement)[145]. This document has been periodically modified and updated over the years[146]. It reflects the exceptional universal value of the protected site, management objectives, commitment to a number of conservation principles and, in fact, establishment of the delimitation of powers. For example, the federal authorities manage the Great Barrier Reef Marine Park, created by the 1975 Act of the same name[147] . It controls an area of approximately 344,400 square kilometres. The State of Queensland is responsible for managing the Great Barrier Reef Coastal Marine Park, which covers approximately 63,000 square kilometres[148]. The agreement notes that there are approximately 1,050 islands and reefs within the Great Barrier Reef Marine Park. Most of the islands fall under the jurisdiction of Queensland and more than half are national parks under state law. About 70 islands are managed by the federal government and form part of Marine Park. Both parks are part of the World Heritage Site area. As indicated in the map legend[149], attached to the Intergovernmental Agreement, the Marine Park does not include small water bodies around ports and towns within the State. In practical conservation activities, the Marine Park Authority and the Queensland Department of Environment and Science are implementing a Joint Field Management Program[150]. As follows from the 2019-2020 programme summary report, the efforts of this entity are focused on five areas: ecosystem conservation, monitoring change, visitor engagement, environmental enforcement, and incident response. Analysis of the report allows to assert that the activities within these areas are rather large-scale. For example, efforts were undertaken to restore the Reef, install a trial macroalgae pumping system, raise the beach level and relocate approximately 15,000 cubic metres of sand to improve turtle nesting conditions[151]. The latest publicly available 2020-2021 report shows that the programme has undergone a significant expansion and transformation, which began back in 2017-2018 following commitments from the Australian and Queensland governments for additional funding (Mosolova, 2019). The expansion is being phased in to provide a considered and sustainable increase in funding from around $17 million to over $38 million by 2021-2022, as well as the rise in staffing from 115 to around 186 people[152] . The practice of involving local communities in administering the Great Barrier Reef is of certain interest. Such participation is carried out through established local marine advisory committees. The purpose of their activities is defined in the Terms of Reference 2021-2024[153]. The objectives of the committees’ activities include, inter alia, advisory services of the Park's administration on the long-term protection and sustainable use and promoting information exchange between various stakeholders. In general, when assessing the overall organisational structure of the Great Barrier Reef management and specifics of the Marine Park organisation in particular, it is necessary to note a high degree of information openness of management processes. Information resources contain data on general policies and programmes for the protection of the Reef, specifics of the Marine Park management, implementation practices and independent assessments of the results of the ongoing activities. Australian legislation contains principles for managing the World Heritage properties[154]. They define the objectives of natural heritage site management (in this part they are fully consistent with the provisions of the World Heritage Convention). A separate block of general principles is devoted to public participation in the management of the site. Thus, management should be ensured through public consultation on issues and actions that may have a significant impact on the site (Article 1.02). Representatives of the local community interested in using the site in some capacity or those whose interests may be affected by the management of the site should be involved in the management processes. Indeed, the proper format for organising the WHS management should include the ongoing involvement of local communities in these activities. At the national regulatory level, there is an obligation to prepare at least one management plan for the World Heritage property. Such a plan should include procedures for public participation in management, identify the necessary measures for identification, conservation and transfer of the property to future generations, encourage integration of responsibilities of all levels of government for property condition, and be reviewed at least seven years in advance. Among the principles under consideration, environmental assessment is of independent importance. Before carrying out any action, its consequences must be assessed in accordance with the established requirements for this type of activity. An action cannot be approved if it is incompatible with the objectives of protection, conservation, promotion and transfer of the site to future generations. Such is the organisational framework for Great Barrier Reef conservation. The legal and regulatory framework for its protection is very diverse and detailed. International and national legal and regulatory frameworks for the protection of the Great Barrier Reef also play a significant role in ensuring the reduction of greenhouse gas emissions. However, their detailed analysis is beyond the scope of this article since they constitute an independent subject of research; therefore, we will focus on the legal regulation aimed directly at the Great Barrier Reef protection. General regulation of these activities is carried out by federal legislation, which includes Environment Protection and Biodiversity Conservation Act 1999[155], Great Barrier Reef Marine Park Act 1975[156], Great Barrier Reef Marine Park Regulations[157], Great Barrier Reef Marine Park zoning plan 2003[158], Reef 2050 Long-Term Sustainability Plan[159]. Queensland state regulations include the Coastal Protection and Management Act 1995[160], the Environmental Protection Act 1994[161], the Marine Parks Act 2004[162]. In terms of possible borrowing of regulatory solutions among the listed acts, the most interesting is the Reef 2050 Long-Term Sustainability Plan[163] (hereinafter referred to as the Plan), which is one of the integral documents defining the procedure of protection and sustainable use of the Reef ecosystem. The first thing that draws attention to this document is the thirty-five-year planning horizon: the Plan will serve as a comprehensive strategy for the development of the World Heritage property until 2050. At the same time, the internal mechanism for updating the Plan is very important: every five years, the effectiveness of the Plan is assessed and adjusted. However, due to the massive coral bleaching processes observed in 2016-2017[164] and the general deterioration of the ecological condition of the Reef, the plan was assessed ahead of schedule in 2018 and then in 2021 considering the World Heritage Committee's assessment and with the involvement of independent specialists. The Plan established advisory bodies: The Independent Expert Panel and the Advisory Committee[165]. The former, as its name implies, aims to provide scientific support for the decisions taken. Examination of publicly available materials shows that the Expert Panel prepares reports on a variety of issues. The Advisory Committee ensures that industry and other sections of the community are involved in the implementation of the Plan. The Committee's status provides for broad sectoral representation of its members, for example, traditional communities, marine tour operators, IUCN Australia, Queensland Ports Association, Farmers' Federation, Queensland Resources Council and others. At the time of writing this article, publication disclosing the content of the Committee's recommendations[166] on one of the most serious threats to the Reef - coral bleaching - became available in the public domain. A distinctive feature of the activities under consideration is the discussion and the possibility of expressing the dissenting opinion of those that disagree with any of the provisions in the final document. For example, the Queensland Resources Council indicated that the Advisory Committee could not make statements on amending global and national climate change policy, as that was not within its mandate. A dissenting view was also expressed on the issue of coal mining. The Resources Council disagreed with the view that coal mining (the Carmichael mine in particular) should not be allowed, stating that there was no direct link between coal mining and climate change. Strategic planning documents have also been drafted in relation to the development of Queensland's ports (Queensland Ports Strategy)[167] . One of the most important regulatory elements of the Reef ecosystem is the Marine Park Zoning Plan[168]. This voluminous document provides a detailed definition of the zones of the Park's territory, highlighting the specifics of each zone's regime. The Plan identifies eight zones in the Australian Reef whose boundaries are described in the appendix. For each regime it determines the purpose of its introduction, the specifics of visitation and the use of natural resources (with or without permission) (Day, Kenchington, Tanzer & Cameron, 2019). Although the objectives of this study do not include the description and detailed analysis of all the identified zones, we will give some examples. Thus, the General Use Zone is allocated. Its purpose is to ensure conservation of the Marine Park territories while providing opportunities for their reasonable utilisation (Section 2.2.2). The objectives of the Research Zone include ensuring scientific research in relatively unaffected areas (para. 2.6.2(b)). More than forty years of Reef zoning practice is highly estimated in science and may serve as a model for developing zoning systems at other sites (Day, 2002; Emslie, Bray, Cheal & Johns et al., 2020). Conclusion The issues considered in this paper are of great importance for the conservation of Lake Baikal World Heritage Site since some elements of Australian experience may be used to strengthen the environmental regime of legal protection of this unique property. The issue of developing a management plan for Lake Baikal World Heritage Site in accordance with the requirements and standards of the World Heritage protection system has been discussed for quite a long time. In this respect, we believe that this programme document should cover a sufficiently long period of time. The Australian experience of adopting a plan for a period of thirty-five years with a system of possible revision seems to be very successful. At the present stage, determination of the specifics of the legal regime of the Baikal Natural Territory Central Ecological Zone (hereinafter referred to as BNT CEZ) should precede the development of the general management plan and strategic development of Lake Baikal World Heritage Site. We have repeatedly noted that it represents a specially protected area, sui generis. It is distinguished from other specially protected natural territories (hereinafter referred to as SPNT) by only one formal feature - the absence of such a quality in the law. Regulatory recognition of the CEZ as a specially protected natural area will allow formation of a single administration similar to the enlarged administrations of protected areas created in Russia in recent years. Such an administration will be able to concentrate general management and control over the implementation of the strategic management plan of the Lake Baikal World Heritage Site. Legal recognition of the CEZ as a special kind of protected area will allow for a unified zoning of the adjacent territories (within the boundaries of the World Heritage Site) with the establishment of different regimes for economic and other human activities. The practice of Marine Park zoning in Australia discussed earlier in this paper shows the effectiveness of such approach. The Lake Baikal water area and adjacent territories can also be zoned depending on the management objectives and establishment of protected area status for the entire Baikal Nature Reserve CEZ. The generalised nature of such a plan does not prevent the adoption of special strategic development plans. Thus, it seems necessary to adopt separate plans for the development of special economic zones of tourist and recreational type located within the BNT CEZ and individual settlements within the World Heritage Site. At the same time, the World Heritage bodies are not indifferent to the development of territories directly adjacent to the World Heritage Site and affecting its condition. Therefore, strategic planning for the development of the five towns that are not within the Lake Baikal World Heritage Site boundaries also seems to be urgent. In turn, promoting the processes of preparing strategic development plans can be significantly strengthened by normative consolidation of the general principles of management plans formation. The Australian experience proves that general principles may serve as a basis for the development of specific management decisions. The reviewed provisions of Australian regulations are also characterised by another feature - the integral role of environmental assessment. In modern Russian conditions, unfortunately, environmental assessment and its variants do not receive detailed regulation. For this end, it is essential to enhance the role of the institution of environmental impact assessment and introduce other types of environmental assessment into domestic legislation and environmental practice, primarily strategic environmental assessment. The global climate change problem faced by the Great Barrier Reef is quite illustrative. Similarly, Baikal is known to be one of the coldest lakes in Russia, and an increase in its temperature will have negative impact on its ecological state. This issue is heavily discussed in the scientific literature in the field of natural science, but it is not represented in legal studies, neither in documents of political nor regulatory nature. In this regard, it seems that connection between the problems of climate change and Lake Baikal preservation should be reflected both in legal documents expressing the environmental policy of the Russian Federation, in the Federal Law on Protection of Lake Baikal and by-laws adopted in its development. Various publications have repeatedly raised the issue of the need to implement an integrated approach to the information support of nature protection at the Lake Baikal World Heritage Site. Creation of a unified administration managing this site will allow to solve the task of consolidation of information policy, organisation and maintenance of a substantial thematic Internet portal that meets high international standards of environmental information disclosure. Along with the possibilities of borrowing Australian management and legislative experience discussed in this article, it should be noted that the Russian Federation has achieved serious success in terminating industrial facilities and implementing large-scale investment projects within the boundaries of World Heritage Sites. This is not only the closure of the Baikal pulp and paper mill, but also cessation of Kholodninskoye deposit development. Not the least role in making the final decision in those cases was played by the fact that Lake Baikal is on the World Heritage List and the Committee's principled position on the impossibility of implementing mining projects on the territory of World Heritage Sites. Thus, the study shows that the foreign experience of protection of unique natural sites has sufficient potential to strengthen the legal and organisational means of protecting Russian World Heritage Sites, including Lake Baikal WHS.

About the authors

Roman Yu. Kolobov

Irkutsk State University; Irkutsk Scientific Center SB RAS

Author for correspondence.
Email: roman.kolobov@gmail.com
ORCID iD: 0000-0003-1488-7530
ResearcherId: H-4644-2016

Candidate of Legal Sciences, Associate Professor of the Department of International and Comparative Law, Law Institute of Irkutsk State University; Researcher of the Department of Regional Economic and Social Problems of the ISC SB RAS

1 K. Marx str., Irkutsk, 664003, Russian Federation; 134 Lermontov str., Irkutsk, 664033, Russian Federation

Yaroslava B. Ditsevich

Irkutsk Law Insitute (branch) of the University of Prosecutor’s Office of the Russian Federation

Email: yaroslavadi@mail.ru
Candidate of Legal Sciences, Associate Professor, Leading Researcher of the Department of Theory and History of State and Law, Irkutsk Law Institute (branch) of the University of the Prosecutor's Office of the Russian Federation, Head of the Association of Youth Environmental Associations of the Baikal Region "EcoMolodezh", Senior Counsellor of Justice 1 Shevtsova str., Irkutsk, 664035, Russian Federation

References