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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
13/04/2010
Wild Rivers (Environmental Management) Bill 2010 [No. 2]

CHAIR —Welcome. We have a submission, which has been numbered 29. Do you need to make any changes or alterations to that?

Dr Seelig —No.

CHAIR —I invite you to make an opening statement and then we will go to questions.

Dr Seelig —Firstly, I just wanted to acknowledge the traditional owners of the land that the Senate inquiry hearing is on today. I thank also the committee for the opportunity to make a presentation and to answer your questions. The Wilderness Society strongly supports the Queensland Wild Rivers Act for three key reasons. Firstly, Queensland’s natural free-flowing rivers need protecting from threats, current and future threats, from dams, in-stream mining, intensive irrigation and other damaging practices.

Secondly, wild rivers is a new and sensible approach to river protection where declarations occur regardless of land ownership in a tenure neutral way. The Wild Rivers Act very explicitly protects native title rights under declarations. I should add it is not a Cape York specific piece of legislation. It is state-wide. If you looked at a map of Queensland where wild rivers works, it is the whole state effectively. It does not discriminate. It does not focus on Cape York.

Thirdly, wild rivers supports and enables sustainable activities and lower impact development as well as traditional and cultural practices. Briefly to elaborate on those things, many of Australia’s and Queensland’s river systems are seriously degraded due to overextraction, pollution, catchment modification and lack of effective river regulation. Science and logic tells us that we really need to deal with river protection at a basin level or at a whole of river system level, not in little parts and incremental parts.

Queensland has some of the last free-flowing rivers in the country. These are rivers that the Queensland government has focused on, because they have all or nearly all of their natural values intact. They are found across the state. They are found in the gulf country and in Cape York, in western Queensland and the Channel Country and elsewhere and on the eastern seaboard, on the islands of Hinchinbrook and Fraser, and on coastal rivers.

The Wild Rivers Act itself was passed in 2005. It has been promoted and endorsed in three consecutive state elections. It has been through three sets of amendments, each of which has involved the input of Indigenous organisations and representatives, conservation groups and industry groups. Essentially those amendments have been designed to try to iron out problems. They may not be perfect, but there has been a process of trying to get the legislation right.

Wild river declarations are designed to prevent destructive development like dams and irrigation and mining occurring in sensitive river areas, but the declarations do support sustainable development and sustainable opportunities, whether they are from grazing, fishing, building infrastructure, and they certainly do support traditional activities. They also allocate Indigenous water reserves, which is a first in Australia.

There has been a great deal of misinformation and misreporting on how wild river works and we have even heard some more of that today. Our submission does touch on some of the misinformation campaign. I have other material, if you are interested in seeing that. There have been claims that it stops all development, that it stops cultural activities, it is akin to a national park, it locks up the land, and these are all wrong. It is claimed there are no threats when clearly there are existing threats from mining. Today in the Cairns Post there is a big story about a Cape Alumina mine that threatens the Wenlock River. Let us not be in any doubt that there are real threats and real risks to river protection. That is not from Indigenous people. That is from a big mining company, and this is an example of what can happen without adequate river protection.

It is claimed that wild rivers takes native title rights away, when the act explicitly states the native title rights are fully protected and none of the act itself or the code or any of the declarations have been found to be contrary to the Native Title Act.

There are other issues that are raised about the Wild Rivers Act, including that it impinges on broader Indigenous rights and, as people have raised today, questions about the principles of the United Nations Declaration on the Rights of Indigenous Peoples. These are really important issues and actually need to be dealt with in a more complex and serious way. I will come to the bill itself in a moment. Regrettably there has been a lot of misinformation and very little proper analysis by those who oppose the Wild Rivers Act about what is actually wrong with it. There has been an awful lot of hyperbole and a lot of polemic.

The Wilderness Society does not support the bill that is before the Senate for three key reasons. Firstly, because the intent here is to undermine river protections, give larger scale development a clear run, and the backers of the bill have made this clear; they wish to see the declarations undermined or the Queensland Wild Rivers Act itself overruled. Secondly, we believe that all landholders should be subject to appropriate environmental regulation and that unfettered property rights of any description can pose a risk when they are in a fragile environment. Thirdly, and perhaps most importantly right now, the Wilderness Society believes that the bill is poorly constructed, is ill informed, politically motivated and it represents a threat both to environmental protection and to states’ rights. It is a simplistic move in support of the anti-wild rivers campaign, which has been running for a long time, rather than a serious attempt to address complex issues around conservation outcomes and Indigenous rights.

Despite the claim that the Wild Rivers (Environmental Management) Bill is all about giving rights to Indigenous people to say no to wild rivers declarations, it is very clear that the intent here is to override the Wild Rivers Act, certainly as far as Cape York is concerned. That leaves serious questions, as we have heard this morning, for traditional owners who want their rivers protected, as well as for the broader community who support environmental protection for rivers and associated landscapes, and of course the government, in this case the Queensland government, which has a responsibility to look after the environment.

With the bill there are no explanatory notes and nor any other sort of material that helps you work out what it is really trying to get to. For a bill titled ‘environmental management’ it does not actually have any positive environmental purpose and it does not say a good thing about environmental regulation. ‘Agreement’ in the bill is undefined. It is unclear what will be required to satisfy the test of ‘agreement’. Is it at a community level? Is it at each and every individual level? I think again this morning from some of the earlier evidence it is quite clear that this is a complex area. It is not as straightforward as simply saying you can have one voice and one plan. If there is a river with a number of families or a number of clans, you may end up with a number of views on the river protection. I guess the bill also does not understand the nature of traditional ownership, Indigenous decision making or how representation works.

How the legislation would work in terms of the effect on non-native title lands covered by the same declarations is also not clear, nor whether if this bill were to be implemented it would set aside an entire declaration or just a part of a declaration. The reasons the current legal provisions of both the Wild Rivers Act and the Native Title Act are inadequate to deal with the issues that are being raised are not given. The bill fails to define Indigenous rights and interests it claims to be protecting and instead seeks to provide a superficial and selective response to a complex set of issues, as I said, with conservation outcomes and Indigenous rights.

The Wilderness Society believes the bill has really failed to understand and reconcile the diverse rights and interests of Indigenous and non-Indigenous people that surround wild rivers. By joining a supposed special measure for Indigenous people to an argument about sovereign property rights the bill attempts to create a precedent for the removal of a state’s regulatory powers and responsibilities with respect to land tenure and environmental management. By extension, this principle could be applied to any environmental protection measure at a state level and could theoretically be extended to any government policy of any description, social, economic or ecological.

Ultimately I think there are key questions about where we draw the line between regulations for the common good and respect for the equal rights and interests of individuals and groups especially around land and water. I guess the Wilderness Society believes that public opinion has been decidedly in favour of environmental regulation taking precedence over unfettered property rights, especially where those entitlements may lead to the cumulative destruction of the environment.

To conclude—and I am doing this because I guess our submission is quite an extensive piece of work and I am not expecting you all to have read it from cover to cover—the Wilderness Society acknowledges the rights of traditional owners to the use and enjoyment of their lands and to negotiate on developments occurring on them. We also recognise the responsibility of state and Commonwealth governments to ensure that all land use and development, whether on Aboriginal land or other tenures, is subject to relevant environmental regulation and planning processes.

The Wilderness Society recognises that there are very important political and policy questions to be addressed in regard to how Indigenous rights and interests are supported and enhanced, how economic and social disadvantage in Indigenous communities is properly addressed and how pristine environments can be protected through progressive conservation approaches.

As an environmental advocacy group, our primary focus is on the environment, but this does not mean that we fail to understand or fail to recognise the legal, social justice and economic opportunity imperatives that also exist when it comes to remote Aboriginal communities. We do not support measures that deliberately or inadvertently contribute to a contravention of Aboriginal rights under the law. Protecting the environment, including our last remaining pristine free-flowing rivers, is a positive legacy that traditional owners and the rest of the Australian community can ensure is left for present and future generations. You can only truly protect the environment if you are prepared to rule out its potential destruction via damaging practices. Subscribing to environmental protection approaches is the easiest and the best way of demonstrating this. We believe that wild rivers makes sense and is a sensible approach.

I guess the idea that a seven clause bill with no explanatory notes or policy details represents an informed and appropriate response to the complex issues at hand to us is farcical. We think it is also demeaning and disrespectful of the need for a serious discussion about how conservation legislation and native title rights and broader Indigenous interests currently interact and how they should in the future.

Senator IAN MACDONALD —Your PhD is in law?

Dr Seelig —No, it is in urban sociology, actually.

Senator IAN MACDONALD —What I understand from your submission is that you believe scientists, urban sociologists and others have to tell Indigenous people how best to care for their country in Cape York. I take it that is what your submission—

Dr Seelig —Not at all, no. In fact, we work very closely with a number of traditional owner groups and we spend a lot of time on Cape York talking to Indigenous communities and traditional owners, and they very much inform our approach to conservation.

Senator IAN MACDONALD —You have heard evidence from the most representative group that they believe they can properly care for their country far better than any—I think I am quoting them—white man, any scientist could, and many of us think that is probably correct.

Dr Seelig —I think you also heard evidence that that group is not regarded as truly representative by a number of traditional owners.

Senator BOSWELL —By a family of six people.

Dr Seelig —No, I think by a number of Aboriginal communities.

Senator IAN MACDONALD —Let us not go into that. I guess parliament is not representative of the Australian people, either, but that is the system.

Dr Seelig —I think it is an important point to make, though. The Cape York Land Council is the native title representative body, but it does not necessarily mean that it is representative of all Indigenous interests on Cape York, nor of all views on wild rivers. What we hear on a very regular basis is that there is a disparate number of views on wild rivers, and the Cape York Land Council represents one of them but, as you have heard this morning, there are many other views.

Senator IAN MACDONALD —As a North Queenslander I can say this. Scientists from down south and from George Street and from Canberra know better how to protect the Cape York country/land of the Indigenous people than the Indigenous people do? That is what you are in fact saying.

Dr Seelig —No, I just said traditional owners themselves inform us on our approaches to conservation. Our views on wild rivers are as much informed by them as they are by science, by good policy and by other means.

Senator IAN MACDONALD —Where it is a conflict between Indigenous people and science you will go with the science every time?

Dr Seelig —I did not say that.

Senator IAN MACDONALD —Well, say that I am wrong.

Mr Esposito —We are not here to act as individuals but to represent the position of the Wilderness Society. There are a number of things in there. I think you are trying to impute that science overrides Indigenous people and by inference that somehow traditional owners have a superior set of knowledge and therefore—

Senator IAN MACDONALD —Yes, I am; you are quite right.

Mr Esposito —That is how I understand it. Our view is a simple one. There are two very valid sets of ecological knowledge systems. One is the traditional ecological knowledge system based on Indigenous knowledge and ownership of land, and it is evolving as well. It is not stuck in the past. Indigenous knowledge particularly at a local scale is vitally important to understanding what is actually happening in the environment. Scientists too have a very valid knowledge system and operate on different scales, different specialisations and in different ways. In the contemporary world we are not dealing with an environment in which simply the application of traditional knowledge is enough on its own to protect the environment solely or prevent destruction. Simply also science is not enough to guide everything we need—

Senator IAN MACDONALD —You are saying Indigenous people have done pretty well for the last 60,000 years, but suddenly they cannot handle it?

Mr Esposito —No, I am not saying that. You are saying that. If you want to ask a question I will answer a question, but I am not saying that. What I am saying is there are knowledge systems that are both important and that contemporary conservation work actually understands that and does an enormous amount to combine them to provide scientific support to Indigenous people, because they are actually—

Senator IAN MACDONALD —We have done pretty well, haven’t we?

Mr Esposito —And vice-versa. The question of Indigenous stewardship of land for 60,000 years or 40,000 years is not a statement about contemporary conservation issues or about knowledge, but whether people are in a position to actually effect conservation.

Senator IAN MACDONALD —Part of your criticism is on the content of the bill. Are you aware that the bill was drawn by a senior counsel and looked at by the parliamentary draughtsmen? You have heard a witness here who is a qualified barrister who does not seem to have any problem with understanding it.

Mr Esposito —I do not have a problem with understanding it.

Senator IAN MACDONALD —Or thinking that it would work in practice?

Mr Esposito —The workability issues I think are profound. It spells out nothing about workability. The question is: what does this do? There seems to be somehow a protection of native title rights so why is it that the native title regime as we understand it is not applicable in this situation? Why can we not revert to the native title regime? If ILUAs are in order why can we not use ILUAs?

Senator IAN MACDONALD —Tell me which part of these words do you not understand:

The development or use of native title land in a wild river area cannot be regulated under the relevant Queensland legislation unless the Aboriginal traditional owners of the land agree.

Mr Esposito —There are no parts of that sentence that I do not understand. It is a question of terms. It is a use of terms. There is no definition of terms and there is no reference to any legal concepts that actually apply at the moment. What are native title lands, where is ‘traditional owners’ defined? What does that mean? What constitutes ‘agreement’? When do you know you have agreement? The issue we take with the bill is why should the state not have any regulatory powers? In effect, the bill is saying only with agreement can the state regulate.

Senator IAN MACDONALD —Yes.

Mr Esposito —Yes. And it is a very particular thing. Only with agreement can the state of Queensland regulate in Cape York with respect to wild river declarations. Broadening that principle out, are you saying that governments have no right to regulate in respect of anything that affects an Indigenous person unless the agreement of the traditional owners is present?

Senator IAN MACDONALD —Have you read clause 7?

Mr Esposito —I would have, yes.

Senator IAN MACDONALD —Do you accept that regulations can be made to deal with the issues that you have raised?

Mr Esposito —Yes, I note that.

Dr Seelig — Except that there were no explanatory notes so how do we—

Senator IAN MACDONALD —I am not sure that that is correct, actually.

Dr Seelig —It is correct.

Mr Esposito —Where are they?

CHAIR —There is no explanatory memorandum with this bill.

Senator BARNETT —The second reading speech makes it very clear with regard to the intent and the object of the bill.

Dr Seelig —So, there is a first reading speech from the Leader of the Opposition and there is a second—

CHAIR —But there is no explanatory memorandum.

Dr Seelig —There are no explanatory notes or memoranda. The first reading speech and second reading speech in the House of Representatives and the second reading speech in the Senate indicate the intent of the bill, which is to override the Queensland Wild Rivers Act.

Senator IAN MACDONALD —That is correct.

Dr Seelig —This bill does not actually have the capacity to do that, so the intent does not seem to be met by—

Senator IAN MACDONALD —Why does it not have the capacity to do that?

Dr Seelig —Because it talks about unpicking declarations, not overriding the state legislation. That is not to say that—

Senator IAN MACDONALD —Sir, I asked you the question whether your—

Dr Seelig —Perhaps you are suggesting by regulation now that there will be an intent to override the act.

Senator IAN MACDONALD —Are either of the others of you trained lawyers?

Dr Seelig —No, I am not a trained lawyer.

Mr Esposito —Does that mean I do not understand law?

Dr Seelig —Are you a trained lawyer, Senator?

Mr Esposito —Do you think we operate in the absence of legal advice?

Senator IAN MACDONALD —This is drawn by a senior counsel and the parliamentary draughtsmen.

Mr Esposito —Getting three lawyers in a room and asking them to agree is like getting three economists in a room and asking them to agree. It does not happen.

Dr Seelig —This is not a question of it being competently drawn by a Queen’s counsel. It is a question of what content—

Senator IAN MACDONALD —And getting the Wilderness Society in a room to try to work out the problems in Tasmania is like having 15 different views on—

Mr Esposito —How long did that take?

Senator IAN MACDONALD —I have had more than my fair share of time.

Senator BOSWELL —Is your organisation privately run and funded?

Mr Esposito —What does that mean?

Senator BOSWELL —It means what it says.

Mr Esposito —Our organisation is a voluntary, not-for-profit public association based on membership, and the membership predominantly provides the funds by which we operate.

Senator BOSWELL —Thank you. That was the answer I was looking for. The Wilderness Society is not a landholder then with any legal rights or interests in the areas under examination?

Mr Esposito —We have no interest in the land as such.

Senator BOSWELL —Your officers are not elected or accountable to anyone in the affected areas?

Mr Esposito —No.

Dr Seelig —Where is the affected area?

Senator BOSWELL —In the cape—

Senator IAN MACDONALD —In the Cape York wild rivers area.

Dr Seelig —Except that the bill does not talk about Cape York and wild rivers is not about Cape York.

Senator IAN MACDONALD —He is asking a question.

Mr Walker —I will note that we do have a number of members on Cape York.

Mr Esposito —But we have no interest in the land.

Senator BOSWELL —Your officers are not elected or accountable to anyone in the affected areas so no—

Mr Esposito —There is no pecuniary interest, if that is what you mean.

Dr Seelig —Accountability is a different issue.

Senator BOSWELL —Would you agree generally speaking that ultimately there is an intention under the Wild Rivers Act to preserve almost 80 per cent of Cape York unchanged?

Mr Esposito —If you look to the map of Queensland and ask—

Senator BOSWELL —I am asking about Cape York. My question is about Cape York.

Mr Esposito —What was the question again?

Senator BOSWELL —I will repeat the question. Would you agree generally speaking that ultimately there is an intention under the Wild Rivers Act to preserve almost 80 per cent of Cape York unchanged?

Mr Esposito —No, I would not agree on that.

Mr Walker —No, not at all.

Senator BOSWELL —What percentage would you agree with?

Mr Esposito —It is not a methodology based on percentage.

Senator BOSWELL —You would not agree with 80 per cent, but you would not say what—

Mr Walker —The purposes of the Wild Rivers Act is to preserve natural values and to protect ecological values both for nature and for people. As to that map, which presumably is meant to show 80 per cent of the cape supposedly being under some sort of restrictive regime, you have to understand that the key mechanism under the Wild Rivers Act is a high preservation area and that is just around the most sensitive rivers and wetlands.

Senator BOSWELL —I understand that.

Mr Walker —It is just in those areas where no dams, no large irrigation schemes and no mining in-stream can occur, but sustainable grazing, building outstations—contrary to what we heard from the land council—can still happen in these areas. We are not talking about an 80 per cent lockup of Cape York.

Senator IAN MACDONALD —You know more than the lawyers and more than the land council.

Mr Walker —Let us be really clear about this. And I think that should be checked in Hansard, the comments—

Senator BOSWELL —Okay. No—

CHAIR —Senator Boswell, I am going to seek some order here.

Senator BOSWELL —Yes, I agree.

CHAIR —Listen to what I am about to say.

Senator HEFFERNAN —Madam Chair, I have a question.

CHAIR —It is very difficult for us following this. It is most difficult for Hansard to record it, and we will have one person at a time. I know people have polarised views, but I just everybody to wait and then have your say rather than interject all the time.

Mr Walker —If I could just finish my statement?

Senator BOSWELL —You are answering questions we have not asked.

CHAIR —Senator Boswell, thank you. Mr Walker, yes, please finish your statement and then we will go to Senator Boswell.

Mr Walker —My point is the claim that has been made that 80 per cent of the cape is somehow locked up by wild rivers is completely false. Wild Rivers does not stop all development. It regulates highly destructive development in the most sensitive parts of the region, because we are talking about some of the world’s most pristine, healthy river systems left. All we are asking for is that they are looked after and we do not repeat the same mistakes that we have made in places like the Murray-Darling. That is all.

Senator BOSWELL —Should the agreement of local Indigenous people be a prerequisite to wild rivers declaration?

Mr Esposito —Please define ‘agreement’.

Senator BOSWELL —Should the agreement of local Indigenous people be a prerequisite to wild rivers declaration?

Mr Esposito —Could you please define ‘agreement’ and ‘local people’.

Senator IAN MACDONALD —If you do not understand what an ‘agreement’ means—

Mr Walker —No, you have to define it.

Senator IAN MACDONALD —You are just being typical Wilderness Society—

CHAIR —All right—

Senator BOSWELL —It will stand on the record, what you have answered.

CHAIR —Senator Boswell! Order!

Mr Esposito —I did ask could it be defined, and the reason I asked that those terms be defined is that I am not interested in having a general debate in which the idea is to entrap the Wilderness Society in some sort of conspiracy.

Senator IAN MACDONALD —We do not need to do that. We know your record.

CHAIR —Senator Macdonald, thank you.

Mr Esposito —I know yours. The point is this. There are many forms of agreement. There are many forms that consent could take. There are many issues that may require agreement and consent. The only mechanisms that we are currently familiar with in terms of land dealings are those primarily provided under the Native Title Act in terms of ILUAs. There are forms of agreement that do exist under the Aboriginal Land Act in Queensland which may be relevant in some circumstances. The use of the term ‘local community’ seems general and very vague. Are we talking about the communities of Coen, Kowanyama and Aurukun? Are we talking about traditional owners and on what basis is their agreement being sought? Are we talking about regional representative bodies as the representatives of those communities? That is why I asked for the terms to be defined. We are more than happy to answer questions and answer them precisely, but we—

Senator HEFFERNAN —Could I ask that precise question?

CHAIR —Just wait one moment. You have one minute left, so are you going to take up the minute, Senator Heffernan, or Senator Boswell?

Senator HEFFERNAN —Yes, I will.

Senator BOSWELL —No, I want to finish this.

CHAIR —We will go to other senators.

Senator HEFFERNAN —I want to ask about annual wildfires.

Senator BOSWELL —Is local Indigenous agreement necessary prior to World Heritage tentative listing? What about World Heritage nomination? Should Indigenous people’s approval be in place first before it goes on to a tentative list?

Senator HEFFERNAN —Good question.

Mr Esposito —I think there are some issues around tentative lists, but to address the question of nomination, absolutely. We are very firmly on the public record that traditional owner consent is required before a nomination would proceed.

Senator BOSWELL —On the tentative list? The question was: on the tentative list?

Dr Seelig —Let us answer the question clearly, then. In terms of any nomination for World Heritage, our opinion is that it represents a future act and so we do regard consent as being a critical component of that process. There is no precedent for that, though, as I understand it, and certainly no precedent for tentative listing. It is a Commonwealth government decision in the end, because they are the people who will make the nominations. But there is no precedent for there to be a requirement of a tentative listing. That does not mean that we would not be very actively supporting any active consultation, negotiation, discussion process to ensure that there is adequate and as full as possible support for a tentative listing. But the main game is actually at the end where a formal nomination has to occur, and that must occur with the consent of traditional owners.

Senator HEFFERNAN —Can I ask a question about wildfires?

CHAIR —No, you cannot. Your 15 minutes is up. We are going to share the time. You have had more than 15 minutes. I am going to Senator Siewert.

Senator HEFFERNAN —Just let me ask one question on wildfires.

CHAIR —Senator Siewert.

Senator SIEWERT —A point was made by the Cape York Land Council that you cannot cut any vegetation in the high preservation areas, and I think it was you, Mr Walker, who just touched on that?

Mr Walker —Yes, I think the committee really needs to check those statements with the Queensland government, because certainly my understanding is they are incorrect. Clearing can happen within a high preservation area for specific purposes, such as managing weeds, building roads, building fences, building outstations and even tourism and fishing lodges. We have heard all sorts of misinformation, including from the Cape York Land Council unfortunately previously, from Noel Pearson and others, that it stops these sorts of development, but it does not. This is what we are really keen for this committee to actually look at—

Senator HEFFERNAN —If you’ve got enough lawyers it doesn’t.

CHAIR —Let Mr Walker finish, please.

Mr Walker —Refer to the legislation, refer to the codes, rather than media statements made by wild rivers opponents, because the fact is wild rivers does not stop clearing within high preservation areas for specific purposes. It prevents dams, irrigation and in-stream mining. It does not prevent sustainable grazing, fencing, et cetera. This is one of the great pieces of misinformation.

Senator HEFFERNAN —What about the millions of hectares of annual wildfire?

CHAIR —Senator Siewert, your question?

Senator HEFFERNAN —Ask about the wildfires, Rachel.

CHAIR —Senator Heffernan, you do not have the call.

Mr Walker —I think he was referring to himself!

Senator HEFFERNAN —There are 17 million hectares; the biggest annual wildfire—

Mr Walker —I think we’ve got a wildfire on the phone!

CHAIR —Senator Heffernan, I would ask you to have some adherence to the agreement we have, and it is Senator Siewert’s question time.

Senator HEFFERNAN —Ask them for me, Rachel.

Senator SIEWERT —It’s funny: I open my mouth and his voice comes out! It is very weird. It is the first time anyone has told me that I am like that with Senator Heffernan! I am presuming you saw the pile of documents Mr Yarrow had on the table, saying that that is the level of red tape. Your submission refers to red tape. Mr Walker, I would like to take you to the issue around tape. I will take your word that you can do all those things you have just said. The next question would be—and you have raised it yourself—the issue around red tape.

Mr Walker —If you want to do development anywhere in Queensland you have to adhere to planning laws. There is a Sustainable Planning Act which applies to all of Queensland and that relates to various bits of legislation. That is true across all of Australia. Everybody doing any form of development has to adhere to planning laws. When it comes to wild rivers development—and you can confirm this with the Queensland government when they come up to give evidence—if a developer or Indigenous community puts in a development application that goes to the one agency, which then sends it to various Queensland government agencies to assess. There is not extra burden in that case on the landowner or the developer to do extra applications. There is a strong argument on Cape York that because of social and economic disadvantage there should be additional help; that there should be additional support for Indigenous communities to navigate through planning laws, because they can be complex things. That is a really good recommendation that this committee could make, because it is a very relevant one.

Senator SIEWERT —In other words, to help navigate a proposal through?

Mr Walker —Absolutely.

Dr Seelig —Balkanu is a development corporation. It gets many millions of dollars of public funding. I would have thought if there was a problem with getting access to legal advice or assistance with development applications is that not the sort of thing that an Aboriginal development corporation should be doing?

Mr Esposito —Our view is that where there are capability issues in terms of dealing with regulation the idea is to provide capacity support, not to lower the bar on regulation.

Senator SIEWERT —You addressed the issue of consultation in a number of areas in your submission. On page 51 of your submission you state that you believe there is still room for significant improvements in the consultation process. I want to link that through to the issues around ILUAs and whether ILUAs are provided for in the wild rivers legislation, because the bill deals with that as well and it is part of what the Native Title Act provides for. I would just like you to flesh that out a little bit more if you will, please?

Mr Esposito —There is no doubt from our perspective that the Queensland government took some time to get up to speed in terms of dealing with the issues of consultation. I think they could have been far more extensive at the early stages and it probably would have avoided a lot of these problems. It may not have changed the scheme all that much. There is further room without doubt for consultation to be improved on a whole range of issues. I think the state government to its credit has at least understood that and started resourcing that, getting officers out to the regions, effectively trying to provide baseline information for communities to use. There is certainly room to go with that. Most pieces of legislation do not make provision for ILUAs. Anything that triggers the future act provisions, as I understand it, will necessitate a negotiation or the right to negotiate or some procedural arrangements and will likely result in an ILUA. Our initial legal advice on the impression of wild rivers is if there were a future act trigger then the Native Title Act would automatically have its effect and the process would be dealt with through normal negotiations. The state did not accept, on some of the advice we have seen—and I know other people in the legal profession have different views on this, and it would be good if some certainty could be brought to the matter—that there was a future negotiation to be taken on. The issue of consultation became one of developing and devising processes that did not exist.

Senator SIEWERT —What is your opinion on whether it constitutes a future act?

Mr Esposito —I do not want to express an opinion. Our advice is that it is not. Our advice is also that ILUAs could be used for anything if parties choose to do so. But an ILUA is an agreement, so whatever the appropriate form of agreement that people need and seek needs to be developed. It needs to be articulated. The problem at the moment is that nobody has actually put the right model on the table as far as we can see. If it were an ILUA negotiation, we are very familiar with those through state land dealings and so on. We have absolutely no qualms about them. They do deliver results. It is just that the bill in its present form lacks specifics. It does not reference the Native Title Act and it does not provide any other models, any other clarity, any other content in respect of what an agreement looks like and how it will be gained and who it is with. Then there is the further issue of how does that intersection between agreement making sit with the imperatives of conservation, particularly at a certain scale? Agreements may often be local or multilateral. Environmental issues are often of a different scale—regional, national or global. The intersection between the question of agreement making and rights or by extension even to treaties comes into play with a whole other set of imperatives to do with conservation. The problem here in Australia generally is that we do not have the architecture to support that. We cannot suddenly run the UN declaration of rights into the system and say, ‘We have a fully fledged system for agreement and free, prior informed consent’, because we do not. We do not have a history of that. This is a work in progress. The importance of an inquiry like this is to establish how those principles need to take effect in law, in administration and in policy, and how they intersect with a range of public policy issues such as the environment, health or anything else. They are all important issues. Free, prior informed consent is a fine principle. The application of it is what we are interested in.

Senator McLUCAS —I think we have heard this morning that there is a significant amount of disagreement about how the Queensland legislation would work. The difficulty our committee will have is making a judgment about the different points of view, simply because in my understanding—and this is my question—we do not have any examples of where applications have been made that have been accepted, refused or whatever. We might disagree about what the Queensland legislation does, but I have not heard any disagreement from any of our witnesses about the desire for Indigenous people who live on Cape York Peninsula to achieve economic development opportunities. What would your advice to our committee be in terms of how to get to the next step? How do we get to a point where we can ascertain whether or not activities in a high protection area can or cannot occur, because all we have at the moment are assertions from one side and assertions from another?

Dr Seelig —I suppose the simple answer for that is to see development applications put in and let them run through the system. I guess as Mr Esposito or Mr Walker suggested, we would fully support the Queensland government looking at assisting traditional owners in some of those cases. That is the only way really. Otherwise when you ask the question about how the Wild Rivers Act would work, it has been in place for five years. These declarations have been around for a few years now. It is not a question of how they would work. It is are they working? Are they stopping applications? Are they stopping sustainable development? If there is a problem with development applications being put in for sustainable activities, the only way to test the system is to test it.

Senator McLUCAS —Are you aware of any applications that have been made?

Dr Seelig —No, because all we have been confronted with is propaganda that has said that it is akin to a national park, it locks up—

Senator IAN MACDONALD —You would recognise propaganda, wouldn’t you?

Dr Seelig —Absolutely.

Mr Walker —Yes, it comes from the Liberal Party.

Senator IAN MACDONALD —You are the greatest purveyors of propaganda I know.

Mr Esposito —I just wanted to add to what Dr Seelig was saying. I agree with that fully. The other way is to do it by hypotheticals. In other words, identify a number of projects with some level of detail and do the run through the administrative system. That may well be important, because the question has come up numerous times: are there development applications? No, there are not. Do the land council and others know of any that are being put in? No, they do not. Regulatory costs seem to be one issue. But I have also heard others talk about preservation of rights, if you like. This is not about things they want to do now but things they may want to do in the future. That is fine. I believe rights should be preserved if they are rights in fact. The hypothetical becomes more realistic in that sense. Some anticipation of what a regional economic strategy might look like for Indigenous advancement; what are the component parts of that? Is it simply mining and agriculture? Is it tourism? Are there other components?

There is a massive industry building up around the country in Indigenous land and resource management and conservation. We need some sense of the type of economic future that is actually being envisaged, because without it you might as well just run with the system as it is. But there are ways in which this could be tested and I do think you need to look to the future. The development issues are long range. They are intergenerational. It is not about what somebody wants to do today or tomorrow or even in the last five years, although they are perfectly valid indicators that the scheme is not preventing development per se. It is incumbent to define an economy strategy that you could then test some of the components of, and an economic strategy that actually understands the environment and the ecology. The wild rivers scheme itself is an ecological model of land management conservation and, in our view, quite a light-touch regulation. It is quite a radical departure from what people historically understand as conservation and it is why people keep saying, ‘These are de facto national parks’, or anything else. It is nothing of the kind. It is a new model of conservation and it needs to be embedded with a new model of economic development for places like Cape York, because the economic opportunities are limited by geography and other factors.

Senator McLUCAS —Just moving to this map, particularly the green and the blue one, I am concerned that the committee might have a view that no economic activity can occur in any of that area, and this notion that 80 per cent of Cape York would therefore not be allowed to have any economic activity. Is there another map that you can point us to that would better define, in your view, the areas say that are the high preservation areas?

Mr Walker —The best documents to look at are the wild river declarations for the current rivers on the cape and there are some in the Gulf of Carpentaria as well. Those maps define within the blue areas—and it is a neat campaign tool, but it does not represent reality—the high preservation area. As I said before, these are the areas by the sensitive rivers and wetlands, which are of global significance, where major mines, irrigation and dams are kept away from. This is an example here.

It does not stop all development, particularly in the areas outside of those high preservation areas. It is a sensible regulatory system that prevents highly destructive development. It does not stop water extraction. For every wild river declaration for the first time in Australia there is an Indigenous water reserve. This is specifically recognising the imperative for Indigenous social and economic advancement on Cape York, and that goes hand in hand with the special clause in the Cape York Peninsula Heritage Act which allows Indigenous communities special exemptions to clear land for economic purposes. We have been trying through a range of negotiation forums, through a range of agreements over a number of years with some of the groups presenting here to settle some of these disputes, but we keep hitting a wall of anti-conservation and propaganda, to be honest.

You need to be very clear that that map does not represent the reality. Development still occurs on Cape York and there is immense opportunity in areas like tourism, land management and the carbon economy that have not been explored and do not get the attention they deserve when we are talking about one of the most spectacular and important regions left on the planet. We need to do something special and different to look after it rather than replicate the same mistakes we have made everywhere else.

Senator IAN MACDONALD —Is that map the one in your submission?

Dr Seelig —That is an example of how a declaration area has a high—

Senator IAN MACDONALD —My question simply was: is that in your submission? If not, do you want to table it?

Dr Seelig —No, it is in the submission.

CHAIR —I thank you for your assistance today.

Proceedings suspended from 1.28 pm to 2.08 pm