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Wild Rivers (Environmental Management) Bill 2010



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ISSN 1328-8091

Parliament of Australia Departmentof Parliamentary Services

Contents

Purpose .................................................................................................................................................... 3

Background .............................................................................................................................................. 3

History of the Wild Rivers (Environmental Management) Bill 2010 ............................................. 3

The Current Bills ............................................................................................................................ 4

Differences between the current Bills and the lapsed Bills ........................................................... 4

The Queensland Wild Rivers Act 2005 ........................................................................................... 4

What is a wild river? ...................................................................................................................... 5

What does the Queensland Act do? .............................................................................................. 6

Further Developments ................................................................................................................... 8

Wild River Declarations ................................................................................................................. 9

Process for making, amending and revoking a wild river declaration ........................................... 9

Wild River Declaration ................................................................................................................... 9

Amendment of a Wild River Declaration ..................................................................................... 10

Revocation ................................................................................................................................... 10

Controls on Development in a Wild River Area ........................................................................... 11

Development in a Wild River Area ......................................................................................................... 11

When a Wild River Area is Declared ................................................................................................. 11

Wild Rivers Code ............................................................................................................................... 12

Exemptions from the application of the Wild Rivers Act 2005 (Qld) ........................................... 13

BILLS DIGEST NO. 114, 2010-11 15 June 2011

Wild Rivers (Environmental Management) Bill 2010

Moira Coombs Law and Bills Digest Section

Bill McCormick Science, Technology, Environment and Resources Section

Operation of the Queensland WR Act ......................................................................................... 13

Pros .............................................................................................................................................. 13

Cons ............................................................................................................................................. 14

Other Issues ............................................................................................................................ 15

Constitutional Issues .................................................................................................................... 15

Native Title Issues ........................................................................................................................ 16

What is Native Title? .............................................................................................................. 16

Native Title Issues raised by the Bill ....................................................................................... 18

Position of Major Interest Groups .................................................................................................... 22

Committee consideration ...................................................................................................................... 24

House of Representatives Standing Committee on Economics ............................................. 24

Senate Standing Committee for the Scrutiny of Bills ............................................................. 26

Senate Legal and Constitutional Affairs Committee .............................................................. 26

Senate Legal and Constitutional Affairs Committee .............................................................. 27

Policy position of non-government parties/independents.................................................................... 28

Coalition senators ............................................................................................................................. 28

Australian Greens ............................................................................................................................. 30

Independent MPs.............................................................................................................................. 30

Financial implications ............................................................................................................................. 30

Main issues............................................................................................................................................. 31

Key provisions ........................................................................................................................................ 31

Definitions .................................................................................................................................... 31

Obtaining Agreement of Native Title Holders ............................................................................. 32

Regulations .................................................................................................................................. 33

Concluding comments ........................................................................................................................... 33

Acknowledgements .......................................................................................................................... 35

Wild Rivers (Environmental Management) Bill 2010 3

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Wild Rivers (Environmental Management) Bill 2010

Date introduced: 15 November 2010

House: House of Representatives

Private Member’s Bill introduced by: the Hon. Tony Abbott MP

Commencement: On Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bills home page, or through http://www.aph.gov.au/bills/ . When Bills have been passed they can be found at the ComLaw website, which is at http://www.comlaw.gov.au/.

Purpose

To ensure that:

 Aboriginal people in Queensland are able to:

- agree in writing to any proposed declaration of a wild river area directly affecting their rights

and interests - register any agreement that is made with the Queensland Government under the Native Title

Act 1993, or

 if there is no agreement, the provisions in the Queensland Wild Rivers Act 2005 (the Queensland WR Act) will be inoperative to the extent of the inconsistency with the Commonwealth Act. The proposed declaration will not apply to the area for which there is no agreement.

Background

History of the Wild Rivers (Environmental Management) Bill 2010

The original Wild Rivers (Environmental Management) Bill 2010 was introduced into the House of Representatives by the Leader of the Opposition, Tony Abbott on 8 February 2010 as a Private Members Bill. A Bill with identical wording was then introduced into the Senate as a Private Senator's Bill (the Wild Rivers (Environmental Management) Bill 2010 [No. 2])on 23 February 2010 by Senator the Hon. Nigel Scullion. The latter Bill passed the Senate and was introduced into the House of Representatives in June 2010. Both Bills lapsed when Parliament was dissolved prior to the 2010 election.

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The Current Bills

Mr Abbott’s current Bill (the Wild Rivers (Environmental Management) Bill 2010) was introduced on 15 November 2010 and Senator Scullion’s current Bill (the Wild Rivers (Environmental Management) Bill 2011) was introduced into the Senate on 10 February 2011. The Bills are identical apart from the year in their title and are different from the previous lapsed Bills. If passed, within six months the Queensland WR Act will have no force in regulating land use on areas defined as Aboriginal land and certain existing wild river declarations (or parts thereof) will lapse unless the owner of such land agrees to the operation of the Queensland Act in writing. Particular processes for obtaining agreement on land where native title exists are addressed in the Bill.

Differences between the current Bills and the lapsed Bills

The Current Bills contain:

 new definitions of Aboriginal Land, owner and register under clause 3. The definition of native title is deleted.  a new subclause 4(3)(b) which provides a guarantee that the Commonwealth Government should provide employment to persons who lose employment as a result of the enactment of

the Wild Rivers (Environmental Management) Act (Clause 4 Constitutional basis and object of the Act).  amended terms under Clause 5 which omits the term traditional owner and substitutes owner. Native title land is omitted and substituted with Aboriginal land. Owners are required to agree

in writing.  new clause 6 which relates to obtaining agreement of native title holders.  Amended clause 8 provides for regulations to be made. Subclause 8(2)(c) provides for

regulations concerning the continued employment of Aboriginal people if their employment should be lost.

The Queensland Wild Rivers Act 2005

In 1998, the Australian Heritage Commission issued a report entitled Conservation Guidelines for Management of Wild River Values, the result of its Wild Rivers Project. The report developed draft Principles and a draft Code for wild river management.

The report identified a number of major pressures impacting on wild rivers including for example grazing, clearing, river management works, mining, gravel, sand and soil extraction and water-based recreation and tourism among others.1

1. N Dixon, A framework to protect wild rivers in Queensland: the Wild Rivers Bill 2005 (Qld), Research Brief no.15, 2005, Queensland Parliamentary Library, Brisbane, 2005, viewed 16 November 2010, p. 5, http://www.parliament.qld.gov.au/view/publications/documents/research/ResearchBriefs/2005/200515.pdf ,

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The Queensland Parliamentary research paper on the Queensland Bill comments that a number of the concepts underpinning the Heritage Commission report were encapsulated into the Queensland Bill in 2005.2

The Wild Rivers Act 2005 (Act No. 42/2005) received the Royal Assent on 14 October 2005 and was proclaimed on 2 December 2005. Further details on the specific operation of the Queensland WR Act are contained in A framework to protect wild rivers in Queensland: the Wild Rivers Bill 2005.3

Section 3 of the Queensland WR Act sets out the purpose of the legislation. Utilising the language of the section, the purpose of the Act is to preserve the natural values of rivers that have all or almost all of their natural values intact and to provide for the preservation of the natural values of rivers in the Lake Eyre Basin. This is achieved through the establishment of a framework that includes the declaration of wild river areas that may include high preservation areas, preservation areas, floodplain management areas and subartesian management areas. It provides for the regulation of particular activities and taking of natural resources in a wild river and its catchment, having a precautionary approach to try to minimise adverse effects on known natural values and to reduce the possibility of adversely affecting poorly understood ecological functions.

It treats a wild river and its catchment as a single entity linking the condition of the river to the health of the catchment. It considers the effects of individual activities and the taking of natural resources on a wild river’s natural values as well as the cumulative effect of activities and the taking of natural resources when further activities or taking of natural resources are proposed. If the wild river crosses a state border, the framework requires working with the state to encourage preservation of the wild river’s natural values in the other state. 4

What is a wild river?

The Queensland WR Act defines wild river as a river described as a wild river in a wild river declaration. The Queensland Parliamentary Library research brief fleshes out this definition and describes a wild river as a river system that has all, or almost all, of its natural values intact. They are free flowing without dams and weirs thus allowing for considerable biodiversity. They will have a number of conservation values and are important in the maintenance of a number of basic ecological functions. Most wild rivers in Queensland are to be found in the Gulf of Carpentaria, Cape York Peninsula and the western Channel Country. A wild river’s natural values are the basis for sustaining healthy ecological processes in a river system.5

2. Ibid, p. 6.

3. Ibid, p. 3.

4. Section 3, Wild Rivers Act 2005 (Qld). 5. N Dixon, A framework to protect wild rivers in Queensland: the Wild Rivers Bill 2005 (Qld), Research Brief no. 15, 2005, Queensland Parliamentary Library, Brisbane, 2005, viewed 4 May 2011, pp. 1-2, http://www.parliament.qld.gov.au/view/publications/documents/research/ResearchBriefs/2005/200515.pdf ,

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What does the Queensland Act do?

The Act does not, of itself, designate certain rivers to be ‘wild rivers’. Rather, it provides a process for declaring a river to be a wild river which involves consultation with communities before the declaration is finalised.

The Explanatory Notes to the Queensland WR Bill state that the objectives of the Bill are to preserve the natural values of wild rivers through a process that declares a river and all or part of its catchment as a wild river area. It also provides a framework for the regulation (through other existing Acts) of activities and resource allocations so that the natural values of the wild rivers are preserved.6 The key features of the Bill are:

 to provide a process to declare a wild river (including moratorium provisions)  to provide a process to amend a wild river declaration  to provide a process to revoke a declaration  recognition of existing rights

 requirement to assess certain development against codes contained in a wild river declaration, and  amendments to other Acts to require certain other activities and resource allocations to be assessed against wild rivers codes or other wild river requirements.7

The Explanatory Notes further comment that :

The Bill provides a head of power to guide the management of certain land-use, water-related, vegetation-related and mining activities (including impacts) within the wild river area. Wherever possible this is then implemented through changes to existing legislation. The Bill does not have its own system of authorisation and compliance. Rather, it is enabling legislation that requires the objectives of the wild rivers legislation and wild river declarations to be considered when making decisions under other legislation on specified developments and activities.

8

Section 13(1) of the Queensland WR Act provides that the Minister must consider in preparing a wild river declaration the following:

 the results of community consultation on the declaration proposal  all properly made submissions on the declaration proposal, and

6. Explanatory Notes, Wild Rivers Bill 2005 (Qld), p. 1. 7. Ibid., p. 3.

8. Ibid., p. 3.

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 any water resources plan or resource operations plan that applies to all or part of the proposed wild river area.9

Section 38 stipulates that the Minister must prepare a report on the consultation process within 30 business days after a wild river declaration is approved, amended or revoked. It must include a summary of the issues and how the issues have been dealt with.10 Section 39 provides that a copy of the consultation report is one of the documents to be available for public inspection.11

A wild river declaration outlines where certain types of new development can occur in the catchment and under what conditions. Wild river requirements do not apply to day-to-day activities (such as feeding stock, refuelling machinery or fishing and camping along the rivers) or to developments existing at the time of declaration. Traditional indigenous activities such as camping, hunting and ceremonies are not development, and so are not subject to wild river requirements.12

According to the Queensland Department’s website, a wild river declaration does not affect native title, cultural heritage, or the function and operation of the Aboriginal Cultural Heritage Act 2003.13

A wild river declaration categorises management areas as follows:

 high preservation area—the area within and up to one kilometre each side of the wild river, its major tributaries and special off-stream features, such as floodplain wetlands  preservation area—the wild river area outside of a high preservation area,

A wild river declaration may also identify the following areas/features:

 floodplain management area— a floodplain area with a strong hydrologic connection to the river system; this may overlap a high preservation area or a preservation area  subartesian management area—an aquifer area with a strong hydrologic connection to the river system; this may overlap a high preservation area and/or a preservation area  designated urban area— an area which includes any town or village in the wild river area. In

these areas, certain types of development activity are exempt from wild river requirements  A wild river area will also include nominated waterways— these are secondary tributaries or streams in preservation areas that have been designated for wild river purposes.  Special feature/s which form part of the high preservation area. Special features play a

significant role in maintaining the natural values of the river system14

9. Section 13(1), Wild Rivers Act 2005 (Qld) 10. Section 38, Wild Rivers Act 2005 (Qld) 11. Section 39, Wild Rivers Act 2005 (Qld) 12. Natural Resources and Water website, op. cit. 13. Queensland, Department of Environment and Resource Management, ‘Declared wild river areas’, website, viewed

8 May 2011, http://www.derm.qld.gov.au/wildrivers/declared_areas.html 14. Ibid.

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Further Developments

Since December 2005, when the Queensland WR Act came into force and the first six wild river nominations were released for public consultation15, significant concerns have been voiced by the pastoral and mining sectors as well as a few local governments. The main concern is the perceived potential impact on economic development in wild rivers areas.

More recently Mr Gerhardt Pearson of the Balkanu Cape York Development Corporation has

strongly expressed concerns about the potential impact of wild rivers declarations on economic development opportunities for indigenous people on Cape York. Some critical issues in relation to legislation include the onerous and unnecessary process for development approvals in wild river areas. 16

The Government negotiated an agreement with the Queensland Resources Council, The Wilderness Society and AgForce, with regard to the six wild river nominations. Part of the agreement was to amend the legislation as soon as possible to allow the declarations to be finalised and to provide certainty to affected landholders and miners.

On 24 July 2006, Premier Beattie, following agreement with representatives of landholders and conservation groups, announced that changes would be made to the Wild Rivers legislation that would allow certain activities within the catchments of wild rivers without jeopardising the policy intent on protecting the natural value of these areas.17

These changes were implemented by the passage of the Wild Rivers and Other Legislation Amendment Act 2006 (Qld). The objective of the Act was to remove unreasonable impediments to essential and low-impact developments in a wild river area.

A further amending Act, the Wild Rivers and Other Legislation Amendment Act 2007 (Qld), was passed in February 2007. The reasons for the amendments were outlined in the Explanatory Notes accompanying the Wild Rivers and Other Legislation Amendment Bill 2007. The importance of this legislation was to:

 declare a further six wild river areas  validate potentially invalid notices published under the Act with regard to these wild river areas  introduce a Wild Rivers Code made by the Minister on 30 January 2007, and  provide a statutory process to amend the Wild Rivers Code for the purposes of the Act.18

15. The first six proposed wild river areas - Staaten, Gregory, Settlement, Fraser, Hinchinbrook and Morning Inlet. 16. T Koch, ‘Businesses condemn wild rivers plan for Cape’, Weekend Australian, 6 June 2009, p. 5. 17. Explanatory Notes, Wild Rivers and other Legislation Amendment Bill 2006 (Queensland), p. 3. 18. Explanatory Notes, Wild Rivers and Other Legislation Amendment Bill 2007, pp. 1-2.

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Wild River Declarations

Throughout 2006, negotiations were undertaken with stakeholders such as Aboriginal and non-Aboriginal landholders, the Queensland Resources Council, AgForce and the Wilderness Society, to resolve issues about the Queensland WR Act and the proposed declarations, resulting in amendments to the Act that received bipartisan support. These amendments were incorporated in the Wild Rivers and Other Legislation Amendment Act 2006 (Qld) which was assented to on 7 December 2006.

In November 2006, the validity of the notices was questioned with regard to a potential technical flaw. Given the importance of the declarations to key stakeholders and the desire to implement the Government’s election commitments as soon as possible, the *2007+ Bill proposed a legislative remedy to overcome any technical flaws in the notices and to ensure the timely declaration of all six wild river areas.19

The declaration of the Settlement, Gregory, Morning Inlet, Staaten, Fraser and Hinchinbrook Wild Rivers took effect on 28 February 2007. This declaration follows on from the legislative initiative taken in December 2006. Since then a further four rivers have been declared:

The following three wild river areas were declared on 3 April 2009:

 Archer Wild River Declaration 2009  Stewart Wild River Declaration 2009  Lockhart Wild River Declaration 2009

The following new wild river area was declared on 4 June 2010:

 Wenlock Basin Wild River Declaration 2010

The Cooper Creek Basin wild river area is currently under consideration for wild river declaration.20

Process for making, amending and revoking a wild river declaration

The process for declaring a wild river is outlined in sections 7-18 of the Queensland WR Act. The process for amending the wild rivers declaration is outlined in sections 19-31 and the process for revoking wild rivers declarations is outlined in sections 32-36.

Wild River Declaration

When a wild river area is being considered for declaration the Minister must publish a notice of intent giving the reason for the proposed declaration and the area to be declared including the split

19. Explanatory Notes, Wild Rivers and other Legislation Amendment Bill 2007, p. 2. 20. Queensland, Department of Environment and Resource Management, Proposed Cooper Creek Basin wild river area, viewed 4 May 2011, http://www.derm.qld.gov.au/wildrivers/coopercreek/index.html

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between high preservation areas and preservation areas, and in a separate document the date of commencement and a description of the moratorium period that will have effect relating to activities that may not be permitted under the Water Act 2000 (Qld), the Vegetation Management Act 1999 (Qld) and the Minerals Resources Act 1989 (Qld). As soon as practicable after the publication of the notice of intent the Minister must publish a declaration proposal notice calling for public submissions within a minimum period of 20 business days. The Minister must also make available a declaration proposal describing the natural values to be protected in the proposed wild river and the wild river area. Section 12 of the Queensland WR Act sets out a detailed list of information that may be included in the Minister’s declaration proposal. For example the declaration proposal may include a description of the proposed wild river and wild river area, the natural values that are intended to be preserved, details of special features, the location of high preservation areas and preservation areas and so on. The section lists 23 instances of the type of information that may be included but the information is not limited to this list.21

In deciding whether to make a wild river declaration the Minister must consider the submissions and community consultations and any water resource plan or resource operations plan that applies to parts of the proposed wild river area. The wild river declaration must contain a list covering similar issues to those described in section 12 for the declaration proposal. Activities that were permitted to be carried out before the wild river declaration may continue after the declaration is made. The declaration must be gazetted and then tabled in Parliament.

Amendment of a Wild River Declaration

The Minister must amend a wild river declaration if he or she is satisfied that preservation of the natural values of rivers is not being met in the wild river area to which the declaration relates.22 The process to amend the declaration is basically similar to that of making a declaration. Minor changes to a declaration can be made without this process being carried out but after consultation of the relevant land owners, and exploration and mining permit holder affected by the amendment.

Revocation

The Minister may propose to revoke a wild river declaration and publish a revocation proposal notice that must give reasons for the proposed revocation and any entity may make a written submission after a period of 20 business days. In deciding whether to revoke the declaration, the Minister must consider “all properly made” submissions.23

21. Section 12, Wild Rivers Act 2005 (Qld) 22. Section 19, Wild Rivers Act 2005 (Qld) 23. Section 32, Wild Rivers Act 2005 (Qld)

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Controls on Development in a Wild River Area

Land owners who want to carry out activities or take natural resources from the land which may be prohibited under a wild rivers declaration can apply for a ten year property development plan that the Minister may approve and who may then move to amend the declaration as described above.24

Development in a Wild River Area

When a Wild River Area is Declared

Once a declaration is in place for a wild river area, it is “subject to a number of statutory controls which outline the requirements for approval of a proposed activity or taking of a natural resource in a particular management area, if permitted”.25 The statutory controls include the following:

 Wild Rivers Code 2007 (Qld)  Coastal Protection and Management Act 1995 (Qld)  Environmental Protection Act 1994 (Qld)  Forestry Act 1959 (Qld)  Fossicking Act 1994 (Qld)  Sustainable Planning Act 2009 (Qld)  Land Protection (Pest and Stock Route Management) Act 2002 (Qld)  Mineral Resources Act 1989 (Qld)  Nature Conservation Act 1992 (Qld)  State Development and Public Works Organisation Act 1971 (Qld)  Transport Infrastructure Act 1994 (Qld)  Vegetation Management Act 1999 (Qld)  Water Act 2000 (Qld).26

In a high preservation area, high impact activities are prohibited but other development activities can continue provided they do not impact on the natural values of the wild rivers. Such activities include:

 in-stream dams and weirs  intensive animal husbandry  aquaculture (for example hatcheries, grow out ponds)  environmentally relevant activities (except some that are essential for urban areas)

24. Sections 31E and 31F, Wild Rivers Act 2005 (Qld) 25. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No. 2], June 2010, paragraph 1.5. 26. Ibid., paragraph 1.5.

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 surface mining (except for limited hand sampling in stream and low-impact exploration off-stream); and intensive agriculture.27

Activities in preservation areas are “subject to normal approval processes, development activities may continue to operate, start up, or expand in this area. The Preservation Area makes up around 80 per cent of a declared wild river basin”.28

Wild Rivers Code

The purpose of the Wild Rivers Code is to ensure that proposed development activities in declared wild river areas do not impact on the health of the river system. Section 6A of the Queensland WR Act states that there is a Wild Rivers Code. The Code governs the activities that can be undertaken in a declared area.29

The Wild Rivers Code, which took effect on 28 February 2007, outlines the requirements that some proposed development must meet before it can be approved in a declared wild river area. The purpose of the code is to ensure that development and other activities in a declared wild river area does not impact on the health of the river system.

The code should be read in conjunction with the relevant wild river declaration for the area to which the development application relates. The wild river declaration details the type of development activities that must be assessed against the code.

The code can also be used as a guide when drafting a development application. This allows applicants to apply innovative solutions to the requirements to preserve the natural values of a wild river.

The code covers:

 agriculture and animal husbandry  aquaculture  environmentally relevant activities  works in tidal areas, coastal management districts and fish habitat areas  residential, commercial and industrial development  works for the take of overland flow water  works that interfere with overland flow water

27. Ibid., paragraph 1.7. 28. Ibid., paragraph 1.8. 29. Queensland Government, Department of Natural Resources and Water, Wild Rivers Code, February 2007, p. 1, viewed 4 May 2011, http://www.derm.qld.gov.au/wildrivers/pdf/wild_rivers_code_2007.pdf; for further information

see Attachment A of this Digest.

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 waterway barrier works  in-stream activities in non-tidal reaches  riverine quarry material extraction  forest production on state lands  native vegetation clearing.30

Exemptions from the application of the Wild Rivers Act 2005 (Qld)

Part 4 of the Queensland WR Act contains exemptions of particular projects from the application of the Act. Section 45 exempts the Aurukun Project and the PNG pipeline project.

Operation of the Queensland WR Act

There are several information sheets about the operation of the Act.

How the wild rivers process works

 Wild rivers guide for self-assessable stock and domestic dams

 Wild rivers guide for local governments

 Wild rivers guide for landholders

 Wild rivers guide for mining, fossicking and exploration

 Wild rivers guide for Indigenous communities

 Information for communities in a declared wild river area

Pros

Points in favour of the Queensland WR Act mostly taken from the report of the Senate Legal and Constitutional Affairs Committee report:

 the Chuulangun Aboriginal Corporation told of its early involvement with the wild rivers initiative and its ability to positively impact on the terms of the Wenlock River Basin Wild River Declaration31

 certain Aboriginal groups such as the Carpentaria Land Council Aboriginal Corporation commented that they were consulted appropriately32

30. Queensland, Department of Environment and Resource Management, Wild Rivers website, viewed 17 November 2010, http://www.derm.qld.gov.au/wildrivers/index.html 31. Ibid, p. 12.

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 “Wild rivers is supporting the proper Indigenous management of country including homelands-based initiatives and sustainable enterprise, and provides important community based employment, training and capacity building opportunities for people” (David Claudie, Chuulangun Traditional Owner); “the right people must speak for country. Wild Rivers does not stop hunting or fishing nor does it stop development. It just means there has to be better environmental protection”(Don De Busch, Nyacha Wanta Homelands and Southern Kaanju Traditional Owner); “We don’t see any way in which Wild Rivers is going to cost any jobs, and we actually see ways in which it can create jobs”(Gina Castelain, Wik Traditional Owner, Wik Projects).33

Cons

Points against the Queensland WR Act:

 many Indigenous representative bodies and individuals strongly supported the provision requiring the agreement of Aboriginal owners before development or use of Aboriginal land can be regulated34

 WR Act affects native title rights and must therefore fall within the ambit of the future acts regime35  many submissions and witnesses considered that the WR Act has adversely affected economic opportunities in Cape York Peninsula36  WR Act arguably breaches Article 19 of the UN Declaration on the Rights of Indigenous

Peoples37  certain large projects have not gone ahead such as the Cape Alumina development and the Matilda Zircon development38  lack of proper consultation including the failure to engage with traditional owners (either

individuals or through representative organisations), the brevity of the consultation process, the timeliness of consultations and a perceived lack of serious consideration of issues presented by traditional owners to government officials during the consultation process. The Lockhart River

32. Senate Legal and Constitutional Affairs Legislation Committee, Wild Rivers (Environmental Management) Bill 2010 [No.2], Commonwealth of Australia, Canberra, June 2010, p. 12, viewed 4 May 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/report/report.pdf

33. Extracts from ‘Traditional Owners support Wild Rivers’, Weekend Australian, 20-21 November 2010. 34. Op.cit., p. 8. 35. Ibid, p. 9. 36. Ibid, p. 15. 37. Senate Legal and Constitutional Affairs Legislation Committee, Wild Rivers (Environmental Management) Bill 2010

[No.2], Commonwealth of Australia, Canberra, June 2010, p. 10, viewed 4 May 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/report/report.pdf 38. T Abbott, ‘Second reading speech: Wild Rivers (Environmental Management) Bill 2010’, House of Representatives, Debates, 15 November 2010, p. 5,

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Aboriginal Shire Council said there was no credible consultation on the Act and Kulla Land Trust indicated that the 2009 Wild River Declarations were made without its input or consent.39

Other Issues

Constitutional Issues

The Bill relies (though not exclusively) on the power of section 51(xxvi) of the Constitution, known as the races power:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxvi) The people of any race for whom it is deemed necessary to make special laws.

In a submission to the Senate Legal and Constitutional Committee in its current inquiry into the Wild Rivers (Environmental Management) Bill 2011, Professor George Williams concludes that the Bill as it currently stands meets the criteria to be a valid enactment under section 51(xxvi) of the Constitution.40 Those criteria referred in Professor William’s submission are that:

 the law is a law with respect to the people of any race and that the Aboriginal people constitute a ‘people of any race’ for the purposes of the races power  the law is ‘deemed necessary’

The significance, if any, of this particular phrase remains unresolved by the High Court. However, the Bill appears to satisfy this criterion nonetheless. The disadvantage experienced by Aboriginal people is well documented and widely acknowledged. The purpose of the Bill is to secure Aboriginal communities in the Cape York area economic opportunities stemming from the use, development and control of the land over which they hold native title. Consequently, if a condition such as that described by Gaudron J applies41, the Bill would likely fulfil it.

39. Op. cit., pp. 11-12. 40. G Williams, Submission to the Senate Legal and Constitutional Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2011, viewed 4 April 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wild_rivers_2011/submissions.htm

41. Professor Williams states in his submission that Gaudron, J concluded that an enactment relying on the races power must be ‘appropriate and adapted to a relevant difference’ in G Williams, Submission to the Senate Legal and Constitutional Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2011, viewed 4 April 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wild_rivers_2011/submissions.htm

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 special laws - the Bill specifically concerns the interests of Aboriginal people in Wild Rivers areas. ‘...the primary benefit being conferred to the traditional owners of native title land in being able to make such decisions about their land.’42

As Professor Williams states the Bill sets up an express and direct inconsistency which would override the relevant Queensland law.43 In accordance with section 109 of the Constitution the Commonwealth law would prevail over the state law to the extent of the inconsistency.

Enacting the Wild Rivers (Environmental Management) Bill 2011 would render the Wild Rivers Act 2005 (Qld) inoperative to the extent of the inconsistency. Thus the Queensland Government would not be able to regulate wild rivers areas that are also subject to native title without first obtaining agreement from the Aboriginal traditional owners.44

The same argument presumably applies to the wider array of Aboriginal land included in the current Bill, beyond land subject to native title.

Native Title Issues

What is Native Title?

“Over less than 20 years the recognition of native title and its integration with the broader legal system has acquired great complexity.”45

The system of recognising native title rights and interests is a complex and multi-layered system of ascribing rights in land to Aboriginal people based on traditional laws and customs. The types of native title rights and interests are diverse in nature.

Native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs.

The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. The capacity of Australian law to recognise the rights and interests held under traditional law and custom will also be a factor.

42. Ibid.

43. G Williams in evidence to the Senate Legal and Constitutional Affairs Legislation Committee, Wild Rivers (Environmental Management) Bill 2010, Hansard, hearing 30 March 2010, viewed 5 April 2011, http://www.aph.gov.au/hansard/senate/commttee/S12918.pdf

44. Op. cit.

45. H McRae, G Nettheim, T Anthony, L Beacroft, S Brennan, M Davis, and T Janke, Indigenous legal issues: commentary and materials, 4 th edn, Thomson Reuters, 2009, p. 342.

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Native title rights and interests may include rights to:

 live on the area  access the area for traditional purposes, like camping or to do ceremonies  visit and protect important places and sites  hunt, fish and gather food or traditional resources like water, wood and ochre  teach law and custom on country.

In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be recognised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians.

Native title rights and interests differ from Indigenous land rights in that the source of land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.46

Commentators make comment on the nature of native title rights:

The rights flowing from a successful native title determination vary greatly. At the high end, the recognition of rights to possession, occupation, use and enjoyment to the exclusion of all others operates very much like ownership of the land. However, the severity of Australian extinguishment rules and the High Court’s insistence on the fact-specific nature of a particular group’s bundle of traditional rights, frequently delivers a much weaker form of property right.

While land rights legislation emerged in a premeditated way from a process of legislative design, native title in Australia represents an awkward mix of lengthy common law decisions and equally complex legislation. The common law decisions produced by the High Court and Federal Court in the decade and a half since Mabo (No.2) lack coherence in important respects. The federal legislation is the product of two successive federal governments with very different policy views towards native title. On top of that, due to the belated recognition of traditional rights more than 200 years after colonisation, native title has had to be retro-fitted into a framework of common law and Commonwealth, State and Territory statutes that are mostly premised on a contrary assumption, namely that such rights did not exist.47

46. National Native Title Tribunal, Exactly what is native title?, viewed 1 February 2011, http://www.nntt.gov.au/What-Is-Native-Title/Pages/What-is-Native-Title.aspx 47. H McRae, G Nettheim, T Anthony, L Beacroft, S Brennan, M Davis, and T Janke, Indigenous legal issues: commentary and materials, 4

th edn, Thomson Reuters, 2009, pp. 203-204.

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Native Title Issues raised by the Bill

The intention of the Bill is to ‘protect the rights of traditional owners of Aboriginal land within river areas to own, use, develop and control that land’.48 The definition of Aboriginal land in the Bill refers not only to land where native title exists, but in addition it also refers to various types of Aboriginal land tenure under Queensland legislation.49 Certain of the Queensland Aboriginal land tenures such as deeds of grant in trust lands, Aurukun lease lands and Aboriginal lands under the Aboriginal Land Act 1991 (Qld) are also lands with recognised or likely native title rights.50 It is unclear whether the remainder listed in clause 3 of the Bill are subject to native title.

An example will serve to illustrate the nature of the kinds of native title rights that exist. In the Wik determination of 13 October 2004, the Federal Court recognised that the Wik and Wik Way peoples have native title rights and interests over 12 530 sq. km. This was a further determination of part of the claim by the Wik and Wik Way peoples after an earlier part-determination in 2000. The area over which native title was determined in October 2004 included various types of existing land tenure such as pastoral leases, Deed of grant in Trust (DOGIT) land, Aboriginal land lease land, unallocated state land and certain other lease areas.51 The rights recognised by the Federal Court were made under two determinations. One determination dealt with the rights and interests that were exclusive and the other with rights that were non-exclusive.

The nature of the exclusive rights included the right to possess, use, occupy and enjoy the determination area. Other rights included in this were the right to:

 speak for and on behalf of and authoritatively about the area  inherit and succeed to the native title rights and interests  give or refuse and determine the terms of any permission for others to enter, remain on or occupy the area by others

 hunt and gather and conduct ceremonies  live on and erect residences and other infrastructure on the area  take, use and enjoy the natural resources  maintain and protect by lawful means areas of significance to native title holders

48. Subclause 4(3), Wild Rivers (Environmental Management) Bill 2010. 49. See the definition of Aboriginal land in clause 3 of the Bill. 50. G McIntyre, submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No.2], viewed 11 April 2011,

http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/submissions.htm 51. National Native Title Tribunal, Wik determination-background information 13 October 2004, viewed 17 February 2011, http://www.nntt.gov.au/News-and-Communications/Media-

Releases/Documents/2004%20media%20release%20attachments/2004%20Wik%20determination.pdf

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 use and enjoy the area and natural resources for teaching, communicating and maintaining cultural, social, environmental, spiritual and other knowledge, traditions, customs and practices of the native title holders in relation to the area.52

As far as non-exclusive rights are concerned, the Federal Court determined that particular rights had not been extinguished. The following rights still remained:

 to hunt and gather and conduct ceremonies  to maintain wells and springs where underground water rises naturally  take, use and enjoy the natural resources of the area  maintain and protect by lawful means places of importance and areas of significance to native

title holders under their traditional laws and customs.53

The Court also recognised non-exclusive and non-commercial rights in relation to flowing, tidal and underground waters.54 The discussion in the previous few paragraphs serves as an illustration of the kinds of native title rights there are and what a complex area of the law it is.

Various views were put forward during the Senate Committee hearings on the effects of the Queensland WR Act on the native title rights and interests of Aboriginal people. The representative of the Commonwealth Attorney-General’s Department stated in evidence to the House of Representatives Economics Committee

...the Queensland legislation quite explicitly excludes an impact of any wild rivers declaration on native title rights and interests. That is on the face of the Queensland wild rivers legislation. It is also supported by a provision in the Queensland Acts Interpretation Act that provides that native title rights and interests cannot be affected unless there is an explicit reference in the legislation to do so. In terms of the application of any declaration made under the Queensland legislation, it is our position that it cannot affect the exercise of native title rights and interests. The Queensland legislation is limited in that respect.55

Certain issues with the Bill were raised before the Economics Committee by Ms Katherine Jones, First Assistance Secretary, Attorney-General’s Department, in connection with provisions of the Bill. In evidence, the representative of the Attorney-General’s Department considered when asked if the Bill extends rights in respect of native title beyond that which exists in the Native Title Act responded:

52. Ibid, this information was taken from the background information to the determination on the NNTT’s website. 53. Ibid.

54. Ibid.

55. House of Representatives Standing Committee on Economics, Inquiry into Indigenous economic development in Queensland and review of the Wild Rivers (Environmental Management) Bill 2010, evidence from Ms Katherine Jones, FAS Social Inclusion Division Attorney-General’s Department, Hansard, p. ECO 6, viewed 23 February 2011, http://www.aph.gov.au/house/committee/economics/WildRivers/index.htm

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In terms of the bill that is before parliament, it provides a right for the Aboriginal landowners to, if they do not agree, prevent a declaration from being made—so, to prevent the environmental regulation to proceed. Under the Native Title Act, there is a range of procedural rights for native title holders and claimants, such as the right to negotiate, the right to be informed and a range of other things, but it does not entail a right to prevent an environmental regulation or other regulation proceeding. So that is the distinction that will be made if the bill proceeds.56

However in a later submission to the House of Representatives Economics Committee, Ms Jones clarified the position where there is no agreement by Aboriginal owners, the declaration is not prevented from being made but the regulation of activities by the declaration in the area relating to the Aboriginal owner is prevented. She states:

I wish to correct the record to note that what can be prevented under those provisions is the regulation of the development and use of the Aboriginal land. The provisions do not expressly prevent the declaration being made. The effect remains that the provisions would seek to prevent environmental regulation.57

The Bill extends to Aboriginal owners a right to prevent the regulation of activities as prescribed in a declaration unless there is agreement by the Aboriginal owners that the declaration should apply. The Queensland WR Act applies to all Aboriginal groups in Queensland affected by the operation of wild rivers declarations. Groups outside these areas are not affected.

Further issues identified in evidence before the Committee by the Commonwealth Attorney-General’s Department included:

 whether the Bill deals with land over which there is native title as well as various Queensland Aboriginal land tenures  issues of clarity about which owner is to agree to the use of the land particularly where native title overlaps with a Queensland Aboriginal land tenure  certainty about who is covered by the Bill  the fact that the Bill provides Aboriginal owners with a right to prevent a declaration being

made, while non-indigenous land holders in the same area will not have the same right. 58

I think it is important to remember that the interests of native title holders, like all property holders, are subject to the relevant state and Commonwealth regulations that protect environmental heritage values. That is the case for all property holders around the country.

56. Ibid, p. ECO 13 57. House of Representatives Standing Committee on Economics, Inquiry into Indigenous economic development in Queensland and review of the Wild Rivers (Environmental Management) Bill 2010, Submission to the Committee by Ms Katherine Jones, FAS Social Inclusion Division Attorney-General’s Department, 18 February 2011, viewed 5 May

2011, http://www.aph.gov.au/house/committee/economics/WildRivers/submissions/Sub39.pdf , 58. Ibid, p. ECO 18. The position stated in relation to this last dot point has since been further clarified by the Attorney-General’s Department, see footnote 57.

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Obviously, it varies from jurisdiction to jurisdiction. The types of environmental regulations that are in place vary quite significantly around the country, but it is a fundamental reality that the holdings of property holders, whatever the type of property holder, are subject to environmental regulation.

59

Various submissions to the Senate Legal and Constitutional Affairs Committee inquiry in 201060 by academic commentators presented quite diverse views but a common thread in all the submissions, was the fact that the Queensland WR Act, as Professor Williams states, has an impact on native title rights and interests, ‘if only by denying the ability to exercise the rights to their full extent’.61 Professor Ratnapala considers that the Queensland WR Act ‘discriminates against indigenous people’62, while Greg McIntyre QC thought that the operation of a Wild River declaration is an acquisition of a native title right and is as a result a compulsory acquisition because it was done without negotiation.63 He further notes that ‘a compulsory acquisition is valid if done in accordance with the ‘right to negotiate’ under the Native Title Act’ but is invalid unless it is done in accordance with the Native Title Act.64

Professor Altman claims there are fundamental weaknesses in the current Native Title framework.65 In relation to the commercial property rights of Indigenous people, Professor Altman made the following comments in his submission:

Both land rights and native title laws deprive Aboriginal title holders of ownership of commercially valuable resources such as minerals, fisheries and fresh water. While we continue to express policy concern about Indigenous poverty, wealth disparities between Aboriginal and other Australians will never be reduced until land and native title rights are accompanied by resource rights.

He further notes:

So under all forms of land rights, native title and complementary resource laws, Indigenous groups are guaranteed ‘customary’ non-market use rights, but not

59. Ibid, p. ECO 22-23. 60. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No.2], viewed 7 April 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/index.htm

61. G Williams, transcript of evidence to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010, transcript of evidence to the inquiry, 30 March 2010, p. L&C 17, 62. S Ratnapala, submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010, viewed 7 April 2011,

http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/submissions.htm 63. G McIntyre, submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010, viewed 7 April 2011,

http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/submissions.htm 64. Ibid.

65. J Altman, submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Wild Rivers (Environmental Management) Bill 2011, p. 3, viewed 7 April 2011, http://www.aph.gov.au/Senate/committee/legcon_ctte/wild_rivers_2011/submissions.htm

22 Wild Rivers (Environmental Management) Bill 2010

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commercial market (and tradable) rights. This is demonstrated by the anomaly that an indigenous person can harvest a resource for a customary non-market purpose (like domestic consumption), but that same resource cannot be sold commercially unless in possession of a state-provided (and generally expensive) licence.

On Cape York, as elsewhere in remote Australia, this restrictive resource rights regime applies. Hence on native title lands what are termed in the current debate traditional owners do not have commercial rights to develop their lands because they lack property rights in commercially valuable resources. The need for such rights is important on Cape York for two reasons. First, according to analysis of 2006 Census data disaggregated at the regional level, Aboriginal people here are among the most disadvantaged in Australia. Second, the development project that is proposed for Cape York by Noel Pearson and the Cape York Institute and that is strongly supported financially, rhetorically and morally by the Australian state is focused on transitioning people from welfare to engagement in the productive market economy.66

The Committee in its report did not feel well placed to ‘conclusively determine whether a wild river declaration is a ‘future act’ within the meaning the Native Title Act.’67 It commented further:

In turn, the committee cannot form a view in relation to whether the Queensland Act is inconsistent with the Bill for the purposes of section 109 of the Constitution. The issue appears to turn on whether the declaration is an acquisition of native title rights; however the current definition of native title rights, and the existence of subsection 44(2) of the Queensland Act and its apparent preservation of native title rights in wild river areas, suggest that native title rights are not compulsorily acquired by the making of a wild river declaration.68

Position of Major Interest Groups

Press articles up to 2007 reported concerns from various stakeholders and other bodies regarding the implications of the wild rivers declarations. Key stakeholders identified were the Balkanu Cape York Development Corporation (CEO, Gerhardt Pearson); Cape York Land Council; Cape York pastoralists and native title holders. The Wilderness Society was also identified as a key organisation involved in the matter. The chief area of concern was the ‘imposing of unrealistic conservation plans on Cape York and ignoring the rights and skills of the area’s traditional owners.’69

The CEO of the Balkanu Cape York Development Corporation, Gerhardt Pearson, called on the Queensland Government and conservation groups to observe the principles of the Cape York

66. Ibid, p. 10. 67. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No.2], report, June 2010, p. 27, viewed 12 April 2011, http://www.aph.gov.au/Senate/committee/legcon_ctte/wildrivers/report/index.htm

68. Ibid.

69. P Murphy, ‘Cape York leaders take on wild rivers legislation’, The Australian, 20 April 2007.

Wild Rivers (Environmental Management) Bill 2010 23

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Peninsula Heads of Agreement. The Queensland Government responded to his concerns by stating that ‘indigenous communities in the Gulf and Cape York have nothing to fear from Queensland’s new wild rivers legislation.’70 The Minister for Natural Resources and Water commented in 2007

that ‘unfortunately there is a lot of misinformation being spread through indigenous communities about the wild rivers laws…This is being done by non-indigenous interests, and they are scaring people. This has got to stop.’71

The Minister stated that the Government was looking to protect more wild rivers on Cape York, and would start consultations after the wet season.

More recently the views of various Aboriginal groups were presented in a detailed form in the submissions presented to the Senate inquiry in 201072 and in evidence to the Committee hearings.73 Further views in submissions74 have been received during the inquiry by the House of Representatives Economics Committee and in evidence to the hearings for that inquiry.75 Although Aboriginal groups had differing views in relation to the benefits or otherwise of the operation of the Queensland WR Act, generally they supported the provision in the Bill to agree or not to the regulation of activities in their respective areas as the Committee has noted in the report:

Many Indigenous representative bodies and individuals strongly supported this proposed provision.76 It was the subject of considerable comment in submissions and evidence, both in terms of existing native title rights under NT Act and the principle of

70. C Wallace (Minister for Natural Resources and Water), Indigenous communities have nothing to fear from wild river legislation, media release, 29 March 2007, viewed 17 November 2010, http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=51179

71. S Parnell, ‘We won’t stop, warn wild river protesters’, The Australian, 3 April 2007. 72. Senate Legal and Constitutional Affairs Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No. 2], Submissions received by the Committee, viewed 12 April 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/submissions.htm

73. Senate Legal and Constitutional Affairs Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No. 2], public hearings and transcripts, viewed 12 April 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/hearings/index.htm

74. House of Representatives Economics Committee, Inquiry into Indigenous economic development in Queensland and review of the Wild Rivers (Environmental Management) Bill 2010, Submissions received by the Committee, viewed 10 May 2011, http://www.aph.gov.au/house/committee/economics/WildRivers/subs.htm

75. House of Representatives Economics Committee, Inquiry into Indigenous economic development in Queensland and review of the Wild Rivers (Environmental Management) Bill 2010, public hearings and transcripts, viewed 10 May 2011, http://www.aph.gov.au/house/committee/economics/WildRivers/hearings.htm

76. This refers to clause 5 in the previous Bill which has been revised now to read as follows in the current Bill: ‘The development or use of Aboriginal land in a wild river area cannot be regulated under the relevant Queensland legislation unless the owner agrees in writing’, viewed 12 April 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4467% 22; http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs820%2 2

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‘free, prior and informed consent’ as embodied in Article 19 of the UN DRIP77 (UN Declaration on the Rights of Indigenous People).

Committee consideration

House of Representatives Standing Committee on Economics

The Standing Committee on Economics conducted an inquiry into Indigenous economic development in Queensland and a review of the Wild Rivers (Environmental Management) Bill 2010.78 The Committee recently submitted its final report to the Parliament on 12 May 2011.79

The terms of reference for the Committee directed that it “should examine the scope for increasing sustainable Indigenous economic development in Queensland and including in the Cape York region having regard to the aspirations of Indigenous people and the social and cultural context surrounding their participation in the economy”.80 The Committee, as part of its terms of reference, examined such matters as the regulatory framework that currently exists, the impact that the current Bill would have if passed and looked at options for facilitating economic development to benefit Indigenous people as well as protecting the environmental values of the river systems concerned.81

There were a number of recommendations relating to economic opportunities for Indigenous communities.

Recommendation 11 of the Report recommended that the House of Representatives not pass the Wild Rivers (Environmental Management) Bill 2010. In its conclusion, the Committee noted a number of factors as to why the Bill should not be passed. They are briefly:

 analysis of the Bill’s provisions casts serious doubt on its effectiveness and workability;  the Bill’s broad definitions of ‘Aboriginal land’ and ‘owner’ creates a series of permutations for negotiating consent which are likely to result in protracted consultation processes. There is the

77. Senate Legal and Constitutional Affairs Legislation Committee, Wild Rivers (Environmental Management) Bill 2010 [No.2], report, June 2010, viewed 12 April 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/report/index.htm

78. House of Representatives Standing Committee on Economics, Inquiry into Indigenous economic development in Queensland and review of the Wild Rivers (Environmental Management) Bill 2010, terms of reference, viewed 1 February 2011, http://www.aph.gov.au/house/committee/economics/WildRivers/index.htm

79. House of Representatives Standing Committee on Economics, Inquiry into Indigenous Economic Development in Queensland and Advisory Report on the Wild Rivers (Environmental Management) Bill 2010, viewed 9 June 2011, http://www.aph.gov.au/house/committee/economics/WildRivers/report.htm

80. Op. cit., terms of reference. 81. Ibid.

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possibility that these definitions may result in different Indigenous communities being in conflict;  the report noted undesirable outcomes as a result of the Bill overriding the Queensland WR Act:

- the resulting precedent would make it more difficult for the State to enact legislation to

protect the environment; - it would open up Cape York and other environmentally sensitive places to damaging

exploitation; - the successful Wild Rangers program may be put in jeopardy despite the provision of

compensatory employment.

 Clause 5 creates a veto-power purely for a singular group of people which creates an unusual and undesirable precedent. To grant one group of people a particular set of rights above everyone else is detrimental to good policy;

 Clauses 6 and 7 add a further layer of unworkable stipulations. The six month period for conclusion of a consultation process is onerous and unrealistic. Experts state that it takes 12 months to properly conduct such a process.82

The Committee noted the following about the Bill:

3.44 The Bill as a whole is ambiguous in its intent, poorly drafted, inconsistent with other legislation, and produces a number of undesirable outcomes none of which guarantee that the Indigenous people of Queensland will achieve better economic, social, environmental or cultural outcomes. Ultimately, an Act of the Commonwealth Parliament to overturn state legislation will not fundamentally address the barriers to economic development in Cape York or the concerns of stakeholders.

3.45 The Bill is flawed and should not be passed into law.83

Other recommendations relating directly to the Queensland WR Act are:

Recommendation 6

The committee recommends that the QLD Government strengthen its consultation and engagement framework for the Wild Rivers Act 2005 (Qld). The committee notes that the establishment of Indigenous reference committees group under the Cape York Sustainable Communities initiative is intended to address this and to work directly with Indigenous stakeholders on improving the wild rivers consultation process.

Recommendation 8

82. House of Representatives Standing Committee on Economics, Inquiry into Indigenous Economic Development in Queensland and Advisory Report on the Wild Rivers (Environmental Management) Bill 2010, report, May 2011, Canberra, p. 53, viewed 9 June 2011, http://www.aph.gov.au/house/committee/economics/WildRivers/report.htm

83. Ibid.

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The committee recommends that the Queensland Government provides information to Indigenous communities and individuals which assists them to step through the operation of the Wild Rivers Act 2005 (Qld) and other conservation and land management legislation.

There was a dissenting report by Coalition members of the Committee.84

Senate Standing Committee for the Scrutiny of Bills

Senate Standing Committee for the Scrutiny of Bills noted in November 2010 the absence of an Explanatory Memorandum in relation to this Bill commenting:

The Committee prefers to see explanatory memorandums to all bills and recognises the manner in which such documents can assist the interpretation of bills, and ultimately Acts. If the bill proceeds to further stages of debate, the Committee seeks the Leader of the Opposition’s advice as to whether an explanatory memorandum could be provided.85

Senate Legal and Constitutional Affairs Committee

The then Senate Committee on Legal and Constitutional Affairs inquired into the Wild Rivers (Environmental Management) Bill 2010 [No.2] in 2010 and its report was released on 22 June 2010. It was based on the Private Senator’s Bill introduced into the Senate by Senator Nigel Scullion on 23 February 2010 which was identical to the Bill introduced into the House of Representatives by the Leader of the Opposition, Tony Abbott on 8 February 2010.86 The report contains a dissenting report by Coalition Senators and additional comments by the Australian Greens.87

The recommendation of the Committee was that the Senate should not pass the Bill noting the following:

While there might be a need for further information and assistance with development applications, the Committee is not persuaded that the Queensland Act substantially interferes with the current or future development aspirations of Indigenous or other landowners in wild river areas. Even if it did, the committee does not consider that the Bill provides the comprehensive and considered solution needed to economically

84. Ibid., p. 55. 85. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No.10 of 2010, 24 November 2010, viewed 1 February 2011, http://www.aph.gov.au/senate/committee/scrutiny/alerts/2010/d10.pdf 86. This Bill lapsed at prorogation of 42

nd Parliament prior to the election in 2010.

87. Senate Legal and Constitutional Affairs Committee, Wild Rivers (Environmental Management) Bill 2010 [No.2], report, June 2010, paragraph 2.86, p. 29, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/report/index.htm

Wild Rivers (Environmental Management) Bill 2010 27

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and socially empower Indigenous communities in wild river areas. Accordingly, the committee is of the view that the Bill should not be passed by the Senate.88

The Committee noted that the regulatory scheme established by the Queensland WR Act applies throughout Queensland and impacts on many Indigenous and non-indigenous peoples.89 It also commented that the weight of evidence did not support one view over another and therefore it was unable to make conclusive assessments concerning this evidence and considered it inappropriate to make any determinations on these viewpoints. In addition, it commented that it was not appropriate for the Committee to consider an alleged breach of process by the Queensland Government in the making of the Archer, Stewart and Lockhart Basins Wild River declarations as an appropriate matter for examination and determination by the Committee:

Not only is the alleged breach of process beyond the scope of the inquiry, it is properly a matter for the Queensland Parliament and the courts, not the Federal Parliament.90

The report noted that the Cape York Land Council had commenced proceedings in the High Court in June 2010 concerning the validity of the 2009 Declarations made under the Queensland Act. That matter has since been remitted to the Federal Court.91 The Federal Court case is still in progress. Documents are to be filed by June 2011.92

There were a number of issues not able to be determined by the Committee. As previously referred to on page 22 of this Bills Digest, the Committee noted that it was unable to conclusively determine whether a wild river declaration is a ‘future act’ under the Native Title Act based on the evidence submitted to it during the inquiry. It noted:

Native title is a highly complex and evolving area of law, and the committee is not well placed, on the basis of the evidence put before it during the inquiry, to conclusively determine whether a wild river declaration is a 'future act' within the meaning of the NT Act. 93

Senate Legal and Constitutional Affairs Committee

The Senate Legal and Constitutional Affairs Committee inquired into the Wild Rivers (Environmental Management) Bill 2011. The Committee was concerned in its inquiry only with the provisions of the Bill which have not been previously examined by the then Legal and Constitutional Affairs

88. Senate Legal and Constitutional Affairs Committee, Op. cit., p. 28, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/report/index.htm 89. Ibid, p. 26. 90. Ibid, p. 27, paragraph 2.81. 91. Information obtained from the registry of the High Court. 92. The Wik People, the Umpila People, the Lama Lama People and Anor v State of Queensland and Anor, Federal Court

of Australia, Queensland Registry. 93. Senate Legal and Constitutional Affairs Committee, op. cit., p. 27, paragraph 2.82.

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Committee in its inquiry and report into the Wild Rivers (Environmental Management) Bill 2010 [No. 2] June 2010. The Committee reported on 10 May 2011. It has again recommended that the Senate should not pass the Bill. The report again contains a dissenting report by Coalition Senators. The Committee’s view briefly is that while acknowledging the challenge to provide a comprehensive and appropriate solution to Indigenous communities both economically and socially, it does not consider that the Bill provides any solutions to these problems. The report notes:

Indeed, insofar as the Bill calls into question the future of wild river rangers, the Bill may actually serve to undo some of the good work currently being done.94

The report further notes:

That the Bill is poorly constructed and confusing. Key terms and concepts are poorly defined and in some cases make no sense. The processes proposed are unworkable as well as being ill-advised. If implemented, the Bill would result in bad policy outcomes, as well as legal uncertainty for all stakeholders.95

Coalition senators continue to support the Bill and “its aim of protecting the rights of traditional owners of native title land within wild river areas to own, use, develop and control that land with a view to economic and social advancement.”96 The Coalition Senators further note:

Coalition Senators view the Queensland Government’s wild rivers legislation as nothing short of an attack on the legitimate economic aspirations of Indigenous people and the development of the Cape York region. The Queensland Act is designed to suffocate proposals for economic development and, if allowed to continue unchecked by the Commonwealth, will further embed the cycle of dependence at the expense of individual and community empowerment.97

Policy position of non-government parties/independents

Coalition senators

The Coalition senators made their policy position clear in relation to the previous Bill in a dissenting report to the Senate Legal and Constitutional Affairs Committee’s inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No.2] in June 2010.98 Although the position stated relates to

94. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Wild Rivers (Environmental Management) Bill 2011, report, May 2011, p. 20, viewed 11 May 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wild_rivers_2011/report/index.htm

95. Ibid., p. 20. 96. Ibid., p. 40. 97. Ibid., p. 40. 98. The current Bill has been amended since the Committee released its report in 2010 but the comments are still

pertinent to the current Bill.

Wild Rivers (Environmental Management) Bill 2010 29

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the previous Bill, it is still relevant to the current Bill. They recommended that the Bill should pass. In their report they noted concerns about the following:

 the alleged breach of statutory processes by the Queensland Government in relation the 2009 Declarations under the Queensland WR Act99  in the view of the Coalition Senators, the evidence submitted to the inquiry indicated that an appropriate balance has not been struck with the wild rivers regulatory scheme100  economic opportunities for remote Aboriginal communities are restricted by the declarations

under the Queensland WR Act101  the making of a Wild River declaration can forestall third party investment in a Wild River area102  the consultation processes used by the Queensland Government and the level of consultation103

Coalition senators also note there are inconsistencies between:

 the Australian Government policies on Closing the Gap and the promotion of Indigenous economic and social advancement and the Queensland Act curtailing development of native title land in wild river areas104

 the Queensland WR Act and the Native Title Act 1993. They claim that even though the Queensland Government asserts that declarations are not future acts, they consider that it is possible for there to be full or partial abrogation of native title rights by the making of a wild river declaration.105

They further note:

The application of the Queensland Act [Wild Rivers Act 2005] is severely restricting the capacity of Indigenous communities in wild rivers areas to use, develop and control their land. In particular, wild rivers declarations made under the Queensland Act are restricting economic and employment opportunities for Cape York communities.106

99. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No.2], Dissenting report by Coalition Senators, p.29-33, viewed 8 February 2011. 100. Ibid., pp. 33-35. 101. Ibid., pp. 35-36. 102. Ibid., p. 39. 103. Ibid., pp. 41-44. 104. Ibid., p. 48. 105. Ibid., p. 48. 106. Ibid., p. 49.

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Australian Greens

The Australian Greens included additional comments in the Senate Committee report.107 The Greens welcomed the Liberal Party’s commitment to increasing the rights of native title holders. They further note

The Greens support amending the Native Title Act so that it reflects the increased rights of native title holders that the Liberal Party is proposing. Those increased rights should be available to all native title holders across the country and in all circumstances, rather than only on Cape York and only in regard to one particular Queensland law.108

The Greens did note however, that they considered a more comprehensive inquiry was needed given the diverse and often contradictory nature of the information provided to the Committee. Definitive conclusions were not able to be derived and they felt the Committee was not in a position to express a definitive view on whether the Wild Rivers Act is inconsistent with the Native Title Act given the differing legal opinions provided to the inquiry.109 They referred to Professor George Williams’ and Professor John Altman’s submissions and agreed with them that any amendments should be Australia-wide.110

Independent MPs

On 25 February 2011, Mr Katter wrote to the Committee supporting the Bill.111

Financial implications

No financial implications are stated in the Private Member’s Bill. However, there may be potential costs if the Commonwealth Government is required to provide employment to persons who lose employment in managing a wild river area. Other potential costs may include employing people to implement the Act itself.

107. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No.2], additional comments by the Australian Greens, pp. 51-54, viewed 8 February 2011. 108. Ibid., p. 52. 109. Ibid., p. 51. 110. Ibid., p. 52. 111. B Katter, Submission to the House of Representatives Economics Committee, 25 February 2011, viewed 5 May 2011,

http://www.aph.gov.au/house/committee/economics/WildRivers/submissions/Sub033.pdf

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Main issues

 The Bill extends the right to native title holders and other owners (holding various land tenures under Queensland legislation defined as Aboriginal land) to agree or not to the regulation of activities under the Queensland WR Act

 The Bill only relates to Aboriginal groups affected by Wild Rivers Declarations  Under the Bill, existing wild river declarations will lapse after six months unless a new agreement is made with the Aboriginal owner.  There is a lack of explanatory material to accompany a Bill which will have complex effects if

passed.

Key provisions

Definitions

Proposed section 3 provides definitions for Aboriginal land, land, native title land, owner, register, regulated, relevant Queensland legislation, wild river area and wild river declaration. In this version of the Bill the new definitions are Aboriginal land, owner and register. The new definition of Aboriginal land includes land over which there is native title as well as other forms of Aboriginal land tenure under Queensland legislation. There is some overlap between the Queensland land tenures and native title rights. The new definition of Owner lists the persons under the various pieces of legislation who are the owners under the legislation concerned. The new definition of Register refers to the Register established and maintained under part 7 of the Native Title Act 1993.

Proposed section 4 states the constitutional basis upon which the Bill derives its source of power. The Bill’s source of constitutional power is section 51(xxvi) of the Constitution, the races power, and any other express or implied constitutional power. Proposed subsections 4(2) and 4(3) expressly state that it is the intention of Parliament that this Bill:

 is a special measure which will advance and protect Australia’s indigenous people  protects the rights of traditional owners of Aboriginal land within wild river areas to own, use, develop and control that land  requires that the Commonwealth Government should provide employment in accordance with

provisions set out in the regulations if it results in persons losing their employment in managing a wild river area . This last point is an additional subparagraph in this version of the Bill included in proposed section 4.

Proposed section 5 provides that the relevant Queensland legislation cannot regulate the development or use of Aboriginal land112 in a wild river area unless the owner agrees in writing. This

112. G McIntyre QC notes in his submission to the Senate Legal and Constitutional Committee, that the deeds of grant in trust lands, Aurukun lease lands and Aboriginal Lands under the Aboriginal Lands Act on Cape York Peninsula are all

32 Wild Rivers (Environmental Management) Bill 2010

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section has been changed from the previous Bill by the replacement of the term native title and Aboriginal traditional owners to take account of the wider range of tenures and “owners” addressed.

Obtaining Agreement of Native Title Holders

Proposed section 6 is an additional section to this Bill.

Proposed section 6 relates to obtaining the agreement of native title holders. The agreement made under proposed section 5 where native title exists can be registered under section 24BI113 (which applies only where native title is already determined) or under sections 24CK114 or 24CL115 of the Native Title Act 1993. This means that an agreement referred to in proposed subsection 6(a) may be registered in accordance with section 24BI which provides that the agreement be registered on the Register of Indigenous Land Use Agreements. The agreement under proposed section 6 must include a statement that the parties agree to an area of land being regulated.

Sections 24CK of the Native Title Act 1993 relates to the registration of area agreements certified by representative bodies. Proposed subsection 6(b) provides that an agreement under proposed section 5 can be registered under sections 24CK or 24CL. Under section 24CK an agreement can be registered if it has been certified by representative Aboriginal/Torres Strait Islander bodies for the area and the conditions set out in section 24CK have been satisfied. Section 24CL of the Native Title Act 1993 relates to the registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies. This section provides that the Registrar must register the agreement if it includes a statement to the effect that all reasonable efforts have been made to identify all native title holders covered by the agreement and that all persons identified have authorised the making of the agreement under paragraph 24CG(3)(b) and if the conditions set out in subsections 24CL(2) and (3) are satisfied. The agreement should also include a statement to the effect that the parties agree to an area of land being regulated.

Existing declarations to be agreed to or lapse

Proposed section 7 is a transitional provision. It provides that an existing declaration will lapse in six months unless a new declaration is made with the agreement of the owner of the Aboriginal land beforehand.

lands with native title rights because of the operation of section 47A of the Native Title Act, in Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Wild Rivers (Environmental Management) Bill 2010 [No.2], viewed 16 November 2010, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/index.htm 113. Section 24BI of the Native Title Act 1993 relates to the registration of body corporate agreements. 114. Section 24CK of the Native Title Act 1993 relates to the registration of area agreements certified by representative bodies. 115. Section 24CL of the Native Title Act 1993 relates to the registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies.

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Regulations

Proposed subsection 8(1) provides that the Governor-General may make regulations for the purposes of this Act. Proposed subsection 8(2) provides that without limiting the operation of proposed subsection 8(1), regulations may prescribe the following procedures:

 seeking the agreement of an owner  negotiating the terms of an agreement  giving and evidencing of the agreement  the continued employment of Aboriginal people and other people in implementing the

proposed Act.

Concluding comments

The issues canvassed in this Digest are extremely complex and indeed multilayered. There are many and varied views both in support of and against the proposed legislation.

As Professor Altman states:

...the Wild Rivers Bill has two main objects described in s 4 and s 5. The first at s 4 (3) is to ‘protect the rights of traditional owners of Aboriginal land to own, use, develop and control that land’. The second at s 5 is to require the agreement of land owners: ‘The development or use of Aboriginal land in a wild river area cannot be regulated under the relevant Queensland legislation unless the owner agrees in writing’.

These two objects together take the property rights of owners of Aboriginal land within a wild river area to a level that is unprecedented in Australia. 116

However the Bill affects the rights of only a certain number of Aboriginal people and not all. While Professor Altman considers that the Bill makes good economic sense, it is focused on the wrong law.117 He recommends the strengthening of the native title framework ‘to ensure that the important resource rights and free, prior, informed consent issues being raised by this inquiry in the Wild Rivers Bill are given appropriate national, rather than region-specific, attention’.118

The Wild Rivers Bill also creates varying levels of rights for Aboriginal people depending on where they live. For instance Professor Williams comments in his submission:

116. J Altman, submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Wild Rivers (Environmental Management) Bill 2010, viewed 7 April 2011, http://www.aph.gov.au/Senate/committee/legcon_ctte/wildrivers/submissions.htm

117. Ibid. 118. Ibid.

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My view is that it is generally better to pass a law that has a broader application than this law. It is generally preferable to pass a law that deals with these issues across the country rather than focus on a particular area. That is not an insurmountable argument but it does mean there needs to be a special consideration put towards a law of this kind. That is because it can set up two classes of rights for Aboriginal people in one area and not others. My own view is that if there are important rights involved—and clearly there are—then they ought to be protected Australia-wide.119

The view of Noel Pearson of the Cape York Institute for Policy and Leadership is to urge support for this Bill. He states:

Requiring the Queensland Government to negotiate the consent of Aboriginal landowners in Cape York Peninsula - through ILUAs - will have the following results:

1. It will enable the good intentions of the Queensland legislation to ensure the protection and good management of the rivers of Cape York Peninsula - to be achieved. I agree with this outcome. All indigenous people in Cape York Peninsula that I know agree with this outcome.

2. It will enable Aboriginal landowners in Cape York Peninsula to negotiate appropriate terms with the Queensland Government to ensure that opportunities for economic development are not lost and that landowners are properly supported for their stewardship of the environment.120

The House of Representatives Economics Committee has recently reported on 12 May 2011 and the major comments and recommendations have been noted in this Bills Digest. As also previously noted, both the House Committee report and the two reports from the Senate Legal and Constitutional Affairs Committee all recommend that the Bill should not pass, with each containing a dissenting report from coalition representatives on the committee.

119. G Williams in evidence to the Senate Legal and Constitutional Affairs Legislation Committee, Wild Rivers (Environmental Management) Bill 2010, Hansard, hearing 30 March 2010, viewed 5 April 2011, http://www.aph.gov.au/hansard/senate/commttee/S12918.pdf

120. N Pearson, submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No. 2], viewed 5 May 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/wildrivers/submissions.htm

Wild Rivers (Environmental Management) Bill 2010 35

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Acknowledgements

Many thanks to Sean Brennan, Director, Indigenous Legal Issues Project, Gilbert and Tobin Centre of Public Law, UNSW for his invaluable assistance and input. However, responsibility for any shortcomings within this Digest rests with the authors.

© Commonwealth of Australia 2010

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