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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
27/04/2011
Wild Rivers (Environmental Management) Bill 2011

CHAIR —Our final witnesses today are officers from the Wild Rivers Interdepartmental Committee. Do you have anything to say about the capacity in which you appear?

Mr Tongue —I am chair of the Wild Rivers IDC.

CHAIR —Thanks very much. We have submission No. 10 from you. I am going to ask you if you want to speak to that submission, but I just want to remind all senators that the Senate has resolved that an officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy and shall be given every reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. Having just reminded people of that, I am going to ask you if you want to provide us with a brief opening statement to your submission.

Mr Tongue —Merely to note that there are 12 or so Commonwealth agencies on the IDC. We made a judgment today that the committee would be more likely to ask about the Attorney-General’s set of interests, but if there are other issues that the committee wants to go to we have put agencies on standby so we can turn questions on notice around where they go to topics we had not anticipated.

Senator BARNETT —Thank you. When was the IDC established?

Mr Tongue —I would need to check the dates. It was late last year.

Senator BARNETT —Why was it established?

Mr Tongue —Merely to draw together the range of Commonwealth interests associated with considering major issues in Cape York.

Senator BARNETT —It is called the Wild Rivers Interdepartmental Committee. Is that right?

Mr Tongue —That is right. It was established in September.

Senator BARNETT —You will give us the exact date, will you?

Mr Tongue —Yes, certainly. Yes, it is the Wild Rivers IDC. We thought, particularly because of the level of attention driven out of Cape York and the wide range of federal government activity that occurs across the cape, that as the parliament was considering the various propositions it was best to try and draw all that together rather than have multiple agencies.

Senator BARNETT —Who decided that?

Mr Tongue —FaHCSIA, my department, has a coordinating responsibility with regard to Indigenous affairs. The issue was discussed, if I recall correctly, at a whole-of-government forum that we have on Indigenous affairs and a judgment was made to take a more coordinated approach.

Senator BARNETT —Specifically, which minister decided or recommended this? Did it go through cabinet? How did it get established?

Mr Tongue —It was much more a bureaucratic thing.

Senator BARNETT —That is a bit of a worry. Ministers surely must have been consulted.

Mr Tongue —My recollection is no. We had started to move, having taken a view across departments that a coordinated approach would make more sense. It has certainly not been to cabinet, that I am aware, and I do not recall consulting a minister or a minister’s office in the formation of the IDC.

Senator BARNETT —Would the cabinet have been advised?

Mr Tongue —No, not necessarily.

Senator BARNETT —Where did you get the name from?

Mr Tongue —We just thought it was a good descriptor of what we were trying to achieve—trying to get a coordinated view across the Commonwealth.

Senator BARNETT —You referred to Cape York.

Mr Tongue —Cape York seemed to be a lightning rod for concern around wild rivers.

Senator BARNETT —Sure, but what is the name of your IDC?

Mr Tongue —Wild Rivers IDC.

Senator BARNETT —Why did you call it the Wild Rivers IDC and not the Cape York IDC?

Mr Tongue —That is the issue to which we were responding.

Senator BARNETT —So it is all about wild rivers, then.

Mr Tongue —It is about wild rivers, but clearly a key area of contention is to do with Cape York.

Senator BARNETT —This was after the bill was introduced in the House of Representatives by Tony Abbott and after the bill was introduced in the Senate by Senator Scullion—correct?

Mr Tongue —Yes, I think that would be right.

Senator BARNETT —I know it to be correct because you said it was established in September.

Mr Tongue —September, yes.

Senator BARNETT —So it was well after that. But it is fair to say every minister responsible for each of the departments on the IDC would be aware of the work of the committee and the fact that it has been established. You said they had not specifically authorised it but they would be aware of the establishment of such a committee?

Mr Tongue —I cannot account for all the agencies and their briefing of their ministers, but I would expect so.

Senator BARNETT —What about your minister?

Mr Tongue —Yes.

Senator BARNETT —You have briefed your minister?

Mr Tongue —Yes.

Senator BARNETT —What about Ms Jones?

Ms Jones —Yes, we have had discussions with the minister’s office about the work, particularly because the IDC prepared a joint submission to the House committee.

Senator BARNETT —And that is what we have before us today, have we not?

Ms Jones —Yes.

Senator BARNETT —That is what I have in front me. I am just being upfront. You are responding to the Wild Rivers draft bill that has been through the House and is now in the Senate. It has obviously been amended since the previous version. Are you familiar with the Wild Rivers Act 2005 in Queensland?

Ms Jones —Yes.

Senator BARNETT —And you would be familiar with clauses 15 and 16 regarding the making of a declaration?

Ms Jones —I do not profess to be an expert on them. I am aware of the provisions.

Senator BARNETT —But you are aware of those two provisions which require the Queensland government to decide whether to make a declaration and then the approval of a wild river declaration? We have had extensive discussions today with Balkanu and the Queensland government over this briefing note—CTS 02637/09. It is a public document. Are you familiar with that document?

Ms Jones —No.

Senator BARNETT —Could I ask to you take that on notice? As the Attorney-General’s Department representative, you are probably the best person to respond because it is a two-page document. It has a proposed action at the end which says:

  • Subject to Minister’s approval, the department will progress the abovementioned documents to the Governor-in-Council for approval.

Then it has been signed by the minister as approved on 1 April 2009. We were advised by Deputy Director-General, Debbie Best, of the Queensland Department of Environment and Resource Management that that was the case. Attached to that was the declaration that was made pursuant to clause 15 and 16 of the Wild Rivers Act. How extensive would that declaration have been, in your view? Would it have been a couple of pages long, attached to this two-page briefing note, or longer than that? Would it be very comprehensive and extensive or would it be something that simply had to go to Governor-in-Council for approval and then subsequently be promulgated in comprehensive terms in accordance with the act?

Ms Jones —I cannot comment on that. I am not familiar with the exact form of these declarations.

Senator BARNETT —Sure. Let me advise you that she indicated to this committee that the declaration was attached to this briefing note. I asked her for a copy of that and she gave an undertaking that she would provide that to us. I am looking forward to receiving it. She also referred to the fact that the declaration was on the website. Subsequent to her evidence, I have kindly received from the secretary a downloaded copy of the declaration. I just wanted to indicate to you that it is some 34 pages long. It is very comprehensive and goes through all the different aspects of a declaration as set out in the act, which is entirely understandable.

My strong view is that I am absolutely flabbergasted if that particular declaration for those three rivers—you have 34 pages each for the Stewart, Archer and Lockhart basins—would have been attached to a two-page briefing note, which then went to the Governor-in-Council. This is clearly an issue for the Queensland government. I am asking you, with your experience and background in dealing with declarations, if you have ever been involved in the attachment of such an extensive and comprehensive document to a briefing note that needed to be signed off by Governor-in-Council? You may not be able to answer that question.

Ms Jones —I am afraid I cannot in terms of my responsibilities. There is no equivalent of a declaration type process that I can make reference to.

Senator BARNETT —No problem. That is all on the Hansard now, and of course the Queensland government will draw that to the Queensland government’s attention so that we will get an answer back from them as soon as possible. I do not have any further questions at this stage.

Senator FURNER —In your submission, you identify a number of problems in the drafting of the bill, and I will work through a number of those issues. Firstly, it is in my opinion generally accepted that only a traditional owner—and that is the people, according to Aboriginal law and custom, that own the land—should be able to speak for land and make decisions about its use.

Ms Jones —Sorry, Senator, I am not quite sure I understand the question.

Senator FURNER —I indicated that in my opinion it is generally accepted that a traditional owner is the people who, according to Aboriginal law and custom, own that land and therefore being able to speak for the land and make decisions about its use.

Ms Jones —Certainly in the Native Title Act it provides for recognition of traditional ownership and exercise of traditional rights and customs. There are different types of Aboriginal land regimes that recognise slightly different types of interest, whether they are traditional owner interests or historical owner interests. That is one of the issues in terms of the current drafting of the bill as to how those types of interests could be reconciled when they may overlap in terms of an area of land.

Senator FURNER —So therefore what is the decision-making role of traditional owners under this bill?

Ms Jones —The bill provides that there is a concept of an owner of land, and that is linked to the concept of Aboriginal land, which is defined in clause 3, I think. This is a new definition in the current bill that replace the previous definition in the bill that was introduced last year. It refers that the term ‘owner’ in this context refers to both native title holders as well as persons with an interest in Aboriginal land such as that in each of the categories that are set out in the definition of Aboriginal land. I know that sounds quite complex and I think that one of the issues that is not completely clear on the face of the legislation is whether the agreement of the owner needs to be sought at a particular time and how the agreement of the different types of interest holders will be obtained.

Senator FURNER —I imagine there are native title holders already in the cape, particularly in places of wild rivers. Have there been situations where traditional owners and other Aboriginal landowners that fall under one of the types of land listed in the bill are neither traditional owners or native title holders?

Ms Jones —In terms of the categories that are in the current version of the bill, there would be types of owners that do not come into the definition of traditional owner or native title holder. That could be under the Aboriginal land rights act. I think there is a different definition around historical owners. There are different categories of owners.

Senator FURNER —Are they the only categories that you can think of at this stage?

Ms Jones —I need to take that on notice because there are seven or eight different categories of Aboriginal land as defined in the bill, so I just have to clarify in relation to each of those categories what the definition of owner is in Queensland legislation.

Senator FURNER —That being the case, what would be the effects on traditional owners of the new bill requiring that consent of all owners of Aboriginal land as defined in the bill?

Ms Jones —It is not completely clear on the face of the legislation what the effect would be. The issue is how the consent of opponents of land and native title or traditional owners would be obtained and, if there were a difference of view between those two groups, how that difference would be reconciled. I return to the original point we made in relation to the bill, which is that it is our view that the Wild Rivers Act does not affect the exercise and enjoyment of native title rights and interests because it quite explicitly excludes such an impact on native title rights.

Senator FURNER —In respect of the six-month period before current declarations will lapse without consent, how would that operate?

Ms Jones —We have looked at that provision to try to understand how it will operate. Again, it is not completely clear what the impact of that will be in terms of consent.

Senator FURNER —In its nature of being environmental protection legislation does the wild rivers legislation differ from other environmental protection legislation in Queensland?

Ms Jones —I have not done an analysis of the impact of wild rivers compared with all the other types of environmental regulation in Queensland or outside of Queensland.

Senator FURNER —Is that possible?

Ms Jones —I would need to take that question on notice, but I think it probably would be a matter for Queensland government officials to provide authoritative advice to this committee.

Senator FURNER —Do you think the bill is about rights or about development around the cape, or is it a combination of both?

Ms Jones —In terms of the wild rivers bill before the Senate at the moment?

Senator FURNER —That is correct.

Ms Jones —I cannot really comment on that one way or the other.

CHAIR —Do you have a view, Mr Tongue?

Mr Tongue —It is certainly the case that there is at the core of the matter an attempt to reconcile, if you like, Indigenous aspiration and interest in land and economic development with protection of the environment. Certainly the thrust of the IDC’s submission to the House of Representatives inquiry, which we have provided to this committee, is that there is an awful lot of input to economic development in remote areas, particularly in the case of the cape. In trying to provide a platform for Indigenous aspiration in the cape we point to things such as the need for infrastructure investment and governance reform—there is a whole range of things. Whilst the notion of the bill is one potential further input into economic development, it is certainly not the only key input into economic development in the cape. There are a lot of inputs necessary to drive growth in the cape.

Senator BARNETT —Through you, Chair, Senator Furner can of course review the second reading speech in terms of the objective of the bill before the Senate.

CHAIR —But there is no explanatory memorandum, so it makes it very hard for us to make an assessment about this legislation.

Senator FURNER —I asked the Queensland government about economic growth in the cape, and in fact their submission provided ABS statistics on growth between 2006 and 2010 showing an actual increase of 546 jobs in the area. Are there any impediments that you foresee that would prevent economic development, for either Indigenous or non-Indigenous people in the cape, as a result of the wild rivers Queensland legislation?

Mr Tongue —We are certainly aware of one major mining project that has been put into abeyance. We think that was because of the wild rivers legislation. I note from some of the submissions from some of the interests in the cape that also point to the possibility of other projects that may not have gone ahead. That is on the one hand. On the other hand, if you look at evidence from, say, the sort of economic development opportunities that have emerged from World Heritage listing in some parts of the country, a case can be made that protection of the natural environment creates other economic development opportunities. So there is certainly some evidence to suggest some lost opportunity—

Senator BARNETT —Which one are you referring to?

Mr Tongue —I think it is called Cape Alumina.

Senator FURNER —That was an exploration, though, wasn’t it? It was not a case of their actually having been granted a mining lease?

Mr Tongue —No. I do not think they have been granted a final development approval but I think they certainly were moving down the path.

Senator FURNER —So anything could have been possible. As I understand from my research on Cape Alumina, the grade of bauxite there is second grade compared with what is around Weipa township itself.

Mr Tongue —I could not comment. Certainly in the submission we have provided some assessments by Geoscience Australia on various mineralisation and other opportunities in the cape. The evidence suggests certainly the possibility of some lost opportunity but, on the other hand, there is emerging opportunity associated with the natural environment.

Senator FURNER —There have to be other barriers associated with development in the cape for Indigenous people. Are you able to identify those?

Mr Tongue —Certainly. There are around 10,000 Aboriginal and Torres Strait Islander people in the cape area. There have been considerable efforts led by Indigenous leaders in the cape to address issues that might fall broadly under the heading of human capital formation—that is, skills, development, education and so on. Another area is infrastructure. Some of the work that various Queensland government and federal agencies have done has pointed to the need for infrastructure development. I am not talking here about major highways or anything like that; I am talking about work to support the emergence of the tourism industry, to support the emergence of small business and so on. I think there are some governance issues. I was surprised by the level of activity across federal government agencies in the cape, and I think there is some opportunity for us as a group of agencies to get a better direction around some of those opportunities. The same might be said of our relationship with state government counterparts in the cape. So it is the usual story for remote areas of infrastructure, human capital, governance all needing to come together to provide a platform for growth.

Senator FURNER —There has been a lot of commentary around the view that the cape has been locked up as a result of wild rivers; has that been the case?

Mr Tongue —You are asking me for an opinion.

Senator FURNER —Okay, let me rephrase it. There have been statements from the opposition and even from mayors in the cape identifying that it has been locked up, going back to development of the cape. In your statistics and examination of what has resulted in economic development, is that the case?

Mr Tongue —It depends on what class of economic development you are talking about. If you are talking about carbon farming or market gardens or any of the topical things, there is a balance of land still available, but there is also land that is no longer available. If you are talking about mining development, I would refer you to the Geoscience work and step back a bit from that because the answer is that we do not know until projects get further proved up. If you are talking about tourism, perhaps other opportunities emerge. So I think it is a very complex picture.

We have provided in our submissions some assessments that have been made—and I think perhaps the Queenslanders have, too—about how much is locked up and how much is still available. I would also point the committee to the CSIRO assessment completed for the Northern Australia Land and Water Taskforce. That was a very significant exercise, looking at landform capability across the north of Australia. It made some relevant findings on development potentials, for cattle, farming of various sorts and so on, across remote areas including the cape.

CHAIR —Senator Xenophon, are you on the line?

Senator XENOPHON —Yes, I am. There was a gremlin in the system, Chair; I do not know what happened earlier but I eventually reconnected. Could I ask the witnesses: there is not an issue, though, is there, that, constitutionally, the Commonwealth could override the Queensland legislation in the way proposed by the legislation? I think you are raising issues as to the processes and the practicalities of doing so.

Ms Jones —In terms of any federal bill, obviously it would override state legislation to the effect of any inconsistency. But, beyond that, I cannot provide any more detailed constitutional advice.

Senator XENOPHON —No, but other than that: it would invoke whatever—section 109, I think, relates to inconsistencies. But you have concerns about the mechanics of it or its practicalities in terms of how the consent mechanism would work. That is one of your principal concerns.

Ms Jones —I think that is correct. There is just a concern in terms of some of the definitions and some of the interests and how they would be reconciled in practice. And, in relation to a couple of key issues around how agreement will be obtained, it is not clear on the face of the legislation; I think it is left to the regulations as to how that will be set out. That is a fairly significant aspect as to how the regime will operate in practice.

Senator XENOPHON —Almost paradoxically, though, the coalition would trust the government to draft and implement the regulations, which I guess would affect the application of the act, wouldn’t it?

Ms Jones —It would affect the application of the act. It is just difficult to comment without having a better understanding of how those regulations might be drafted and the impact that they would have.

Senator XENOPHON —But, in a sense, the precise application of what is proposed in this bill would be circumscribed by the regulations, which would be an act of the government of the day.

Ms Jones —I think that is correct in practice, yes.

Senator XENOPHON —Yes. Thank you, Chair; I do not have any other questions.

Senator BARNETT —Just on that issue of Senator Xenophon’s: just to put it on the record, there is no issue regarding the constitutionality of the bill before the Senate—is that correct, Ms Jones?

Ms Jones —I am not providing constitutional legal advice on the bill.

Senator BARNETT —No, of course not. But, in terms of your understanding that it is a bill before the Senate and, if passed, it would be legal, are you able to respond to that question?

Ms Jones —In terms of the phrasing of the question, I would just refer back to my general comment before: that, obviously, as to a bill of the federal parliament, if passed, to the extent that there is any inconsistency with state legislation then the Commonwealth legislation would prevail.

Senator BARNETT —Under section 109 of the Constitution, yes. We are familiar with that section. It has just been raised as an issue. I do not think there has been any doubt in the past inquiries that we have had. If you had any doubt, I would be happy for you to take it on notice and alert the committee to any view that might be contrary to the fact that it would not be a legally and constitutionally valid bill. That is really what I am saying. So if you have views to the contrary, please let us know as a committee. That is all, Chair. Thank you.

CHAIR —Thank you for your quite extensive submission. The views of the departments are summarised in the 3¼ page letter dated 15 April that you sent to us as a committee. Thank you very much for your time. I thank everyone who provided evidence to our inquiry.

Committee adjourned at 4.50 pm