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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
02/05/2007
Native Title Amendment (Technical Amendments) Bill 2007

CHAIR —Welcome. Ergon Energy has lodged submission No. 3 with the committee. Do you wish to make any amendments or alterations to that submission?

Mr Webley —No, I have no amendments.

CHAIR —Thank you. I now invite you to make a short opening statement, at the conclusion of which I will advise members of the committee to ask questions.

Mr Webley —Thank you, Mr Chairman. Thank you for inviting me to address the committee. Ergon Energy Corporation Ltd is a government owned corporation responsible for the distribution of electricity throughout regional Queensland, and that is the whole of Queensland exclusive of the south-east corner around Brisbane and the Gold Coast and the Sunshine Coast. An important part of our operation is the supply of electricity in all of Queensland’s Aboriginal and Torres Strait Islander communities. We are the sole generator and distributor of electricity in the Torres Strait and in Aboriginal communities on the mainland. We are party to numerous native title determination applications throughout Queensland where we have existing interests in the claim areas. We always seek to resolve our involvement in the claims issues by agreement and we have consented to all of the native title determinations in Queensland to which we have been a party. Agreements about native title are sometimes also required in relation to compliance for projects and activities, particularly new electricity generation infrastructure, in communities. Ergon has successfully negotiated quite a number of Indigenous land use agreements in both the claims resolution and project compliance context.

There are two aspects of the Native Title Amendment (Technical Amendments) Bill where, in our submission, we have suggested some variations. The first is in relation to subclause 87A(1)(c)(v), which relates to consent to determinations where a respondent party has untenured infrastructure on land or waters. Ergon Energy agrees with the proposed amendment to that section and the rationale in the explanatory memorandum. We understand that the intent of this amendment is to ensure that persons with significant untenured interests within a claim area, such as infrastructure, and operators like ourselves are included as parties who must consent to a determination under clause 87A.

Ergon’s concern is that the current definition of ‘interest’ in relation to land or waters—contained in clause 253—may not provide sufficient certainty to capture our interests in all circumstances where we have existing infrastructure. Just by way of explanation, in the early nineties the state cabinet transferred responsibility for electricity supply in Indigenous communities from the state’s department—and I think it was the Department of Aboriginal and Islander Affairs at the time—to a predecessor of Ergon Energy. Effectively, Ergon Energy out of that inherited infrastructure that had been constructed by other entities over decades.

When that happened virtually no records were provided about the regional development of this infrastructure and just about all of that infrastructure is untenured—that is, there are no leases, licences or documented agreements in place and we have no way now of establishing whether it was constructed under any statutory powers or other bases. This infrastructure can include remote area sections and powerline networks of significant value and importance. The absence of records means that the link between subclause 87A (1)(c)(v) and the definition of interest in relation to land or waters may not be sufficient to capture our interests in electricity infrastructure in the circumstances. Under the amendment only respondent parties with an interest in relation to land or waters must consent to a determination under that provision.

To address this concern we proposed in our submission an amendment to the definition of ‘interests’ in relation to land and waters by adding a paragraph (d) into the definition to say:

(d) a legal or equitable interest in, or right to operate, any infrastructure facility on the land or waters.

There is already a definition of ‘infrastructure facility’ in clause 253 which would limit the effect of that suggested amendment.

The second aspect in our submission where we suggested a variation is in relation to the proposed new clause 60AB, which proposes to provide prescribed bodies corporate with the statutory right to charge a fee for costs. Ergon agrees with the thrust of that amendment. In most cases a native title agreement is sought by a person for a purpose which advances the interests of that person—such as for a new mine or a land development. In those circumstances where a native title body corporate is asked to expend its time and resources on negotiating an agreement to enable a project or activity to proceed it is reasonable that the body corporate’s costs should be recovered from the person seeking the benefit.

Ergon’s submission is that the same rationale does not, however, apply where the person is seeking a native title agreement for the purposes of providing a benefit not for themselves but solely or primarily for the benefit of the body corporate or the common law native title holders which it represents. An example of that situation in Ergon Energy’s context would be the negotiation of an ILUA with a body corporate for the purpose of constructing a new remote area power station or other infrastructure in an Indigenous community where it will provide electricity primarily for the benefit of the native title holders themselves. We have recently concluded such an agreement to enable the construction of a new power station for an island community in the Torres Strait. In those cases Ergon already makes payments to or on behalf of the native title holders in various ways. For example, a payment may be made to the native title holders as consideration for their consent to the project. Also, where the ILUA provides for the grant of tenure for the project, such as a lease over the project site, rental is normally paid for the lease.

Creating a statutory right on the part of the bodies corporate to charge an additional fee for negotiating an ILUA also does not take into account other considerations. For example, the costs of constructing the infrastructure or providing the service to native title holders in a remote location are heavily subsidised. Ergon do not achieve anything like full cost recovery for electricity supplied to communities although there may be a perception in the communities that we do. It would seem unreasonable to require another cost to be added to the supply of electricity where that supply primarily benefits the native title holders and that service is already provided on a heavily subsidised basis.

Proposed section 60AB(4) provides for some exemptions where fees would not be charged. Ergon’s submission is that an additional paragraph be added to exempt from the fee persons who are negotiating to provide infrastructure or a service which is primarily for the benefit of the body corporate or the common law native title holders it represents. That is the gist of our submission.

CHAIR —Thank you very much for that. I will ask Senator Siewert to start the batting with some questions.

Senator SIEWERT —Mr Webley, I am looking at your proposed amendment (d) as to interest. I am bearing in mind the example that you used about the infrastructure that you have in place now. My understanding from what you said is that there are no records anymore.

Mr Webley —That is right.

Senator SIEWERT —So you believe that ‘equitable interest in’ covers the fact that there is infrastructure there that you own but over which you have no statutory or formal legal rights.

Mr Webley —We have no demonstrable rights to the land that we are on. What we are trying to state there is that evidently we do have a right to operate the infrastructure but the provisions under that definition of ‘interest’ in relation to land or waters seems to keep pulling you back to having some sort of interest in the land or waters. We are saying that we have an interest in the facilities that we have on the land or waters.

Senator SIEWERT —So it is actually saying ‘on the land’ and being prescriptive about it being on the actual land and waters?

Mr Webley —Yes. We have a more demonstrable equitable right or interest in the facilities than in the land that the facilities are on.

Senator PARRY —On the same issue, I refer to paragraph (d) at 2.8 of your submission. Have you run that past the department or discussed it with the department prior to entry into this inquiry?

Mr Webley —No, we have not.

Senator PARRY —I am not being critical at all of that. I just want to know why because I would be interested to know the department’s view on that amendment—it makes sense to me. Is that simply because this is the first time you have had the opportunity to do so?

Mr Webley —The submission that we made was done in a relatively brief time. We consulted with solicitors who assist us in these matters, but I think the submission was made on the last day that submissions could be made so I guess we just did not have an opportunity to consult with anyone on it.

Senator PARRY —Have you had any other wider view about that definition from outside your organisation?

Mr Webley —We have some communication with Telstra, who have some fairly common types of interests—both of us having a lot of linear infrastructure. I could not say for sure, but I think they would probably be fairly comfortable to see that type of extension to the definition.

Senator CROSSIN —I think it is pretty succinct, but you say by adding a subsection (d) to section 253—

Mr Webley —The definition of ‘interest in relation to land and water’ is in section 253; yes.

Senator CROSSIN —Is a definition for ‘infrastructure facility’ already in the act?

Mr Webley —Section 253 is the definition in the act. ‘Infrastructure facility’ comes immediately after ‘interest in relation to land and waters’. I have a copy of it here somewhere that I could read to you if you like, but it is pretty longwinded.

Senator CROSSIN —No, that is okay. So that would cover your concerns?

Mr Webley —Why I mentioned that there was already a definition of ‘infrastructure’ was to demonstrate that, because there is a definition thereof, it would already limit the extent to which that paragraph (d) could be used.

Senator CROSSIN —But that would need to be checked by the department if they were going to agree to this?

Mr Webley —Certainly. I do not pretend that I can draft legislation. It is just our suggestion.

Senator CROSSIN —After reading HREOC’s submission, I am not sure the department can either, given that there are a number of flaws they have picked up in the drafting of it. I also want to ask you about the other amendment you are suggesting in 60AB. You refer to just ‘a person’, not ‘a person, an entity or a company’.

Mr Webley —I think the term ‘person’ in these circumstances is deemed to cover companies, bodies corporate and whatever. I did not specifically mean just individuals.

Senator CROSSIN —That is all I had to clarify. Thanks.

CHAIR —Mr Webley, I want to go back to this legal and equitable interest amendment that you have put at 2.8 in your submission on page 2. I presume you are doing this based on some sort of legal advice that you have got which says that you do not have legal right and entitlement to make these claims under the interest in relation to land or waters in section 253, as it currently is.

Mr Webley —Our legal advice is that it may be difficult to establish those legal or equitable rights given the circumstances. This is an attempt to avoid that issue.

CHAIR —It is very surprising in a way because you say you have inherited this infrastructure from the state government in Queensland. If you are concerned about whether you have got legal right and entitlement to the infrastructure on this land, isn’t there very much a fundamental issue here in terms of your legal right and entitlement to act, to raise funds and to do all sorts of things with respect to your infrastructure? It is quite perplexing.

Mr Webley —I guess this relates to infrastructure that was built somewhere between the 1950s and the 1970s. It seems that some things were done a little differently then. It was not uncommon for infrastructure facilities to be built more on a handshake than on more formal, documented leases, licences and agreements.

CHAIR —Sure, but I am saying that, notwithstanding that, you cannot seem to be sure that you can establish legal right and entitlement to the said infrastructure.

Mr Webley —When it was transferred from the state government department to Ergon Energy, I think it was done by some sort of statutory process. I do not know that every item that was transferred was described, but the responsibility and the ownership of those assets was transferred, so I would hope that would be sufficient.

CHAIR —I am not sure whether you heard Mr Dore from the North Queensland Land Council speaking. He was saying that he does not want to allow the man who is walking on the beach with his dog and has been doing it for some years to have some sort of entitlement, and that is why he referred to your submission and your suggestion for changing the draft to include a legal or equitable interest. Can you see the concerns of the North Queensland Land Council that once you used the words ‘equitable interest’ you would open up a Pandora’s box?

Mr Webley —I certainly can see where he would be coming from, but I would like to think that the role we play and the infrastructure we have there is probably seen as a bit more significant than the man walking along the beach with his dog. Certainly, I think in the way we have proposed this amendment we have tried to limit it fairly clearly to an infrastructure provider. But I understand where you are coming from.

CHAIR —Sure. We have noted that, and no doubt the department will be giving consideration to these matters. Thanks very much for that, Mr Webley. We appreciate the time you have taken to be with us today. You are welcome to stay on or you can continue with your other duties.

Mr Webley —I am sure I can go and find something else I need to do. Thank you very much.

[2.27 pm]