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

CHAIR —Welcome. We have a submission from you, which we have numbered eight for our purposes. I ask you to make a short opening statement and speak to that submission. When you have finished, we will go to questions.

Dr Seelig —Thank you for this opportunity. As Senator Crossin has just mentioned, we have made a submission to this specific inquiry and of course we have made very important and substantial submissions to both the previous Senate inquiry and the current House of Representatives inquiry. The second one is not only looking at the Scullion-Abbott bills but also substantially taking that into account. We recognise that the new Senate inquiry is happening while the House of Reps inquiry is still continuing. The introduction of the bill into the Senate again when that Reps inquiry remains was, in our view, premature. This is the second time we have had two simultaneous bills in the two houses of federal parliament. We were just musing as to whether that is an unprecedented phenomenon. We think that—I am sure in common with others—at one level it is disappointing to be here at yet another inquiry hearing. But at another level it is very positive that this bill is being placed under additional scrutiny. We certainly very much welcome this new inquiry.

In our submission to this inquiry and our previous submissions we have raised a whole range of issues around why we believe wild rivers is a very important initiative. We have critiqued the arguments against it and the campaigns that have been run against it and so on. But we wanted to focus very specifically on the bill here, as we believe that that is really what the terms of reference are proposing.

We believe this bill has serious design flaws. It creates a whole series of contradictions and conflicts with the Native Title Act. It has some major interpretation flaws. Its definitions of Aboriginal land, of owner, of agreement and so on are confused. It introduces terms and concepts from the Native Title Act whilst not trying to actually apply them on native title issues per se. The bill has serious explanatory flaws, particularly in the fact that there still are no explanatory notes, despite that issue being raised this time last year. There are no other additional explanatory materials that might help us understand where this bill has come from and precisely what it is trying to achieve.

We believe the bill has a misleading title and purpose as stated, as it does nothing to advance environmental protection. In our view, it does nothing to properly advance Indigenous rights and interests in a consistent way across the board. We believe the bill is divisive, ill-informed and will necessarily lead to legal confusion and constitutional contests and could create a bad public policy and legislative precedent. The bill seems intended to make existing wild rivers declarations null and void and to make it virtually impossible for new ones to be created. In our view, we can expect these outcomes if the bill becomes law.

As we raised in our submission, there are a number of specific problems and issues with specific clauses in the bill. We would be happy to run through them at your request or to answer any other questions you might have of us. Thanks.

CHAIR —Thanks, Dr Seelig. Mr Esposito, do you have anything you want to add to this?

Mr Esposito —Yes, I will just add a comment. I concur with what has just been said. I want to address the proposition that is made out that the Wilderness Society is against Indigenous rights or would forgo Indigenous rights to achieve a conservation outcome. I just want to state for the record that that is completely wrong. We have spent nearly two decades working at the interface between conservation and Indigenous rights. We have embraced the challenge. We think there are some really important issues and they can be done well and properly, to the benefit of both the environment and Indigenous people in the community at large.

Our fundamental problem is that this bill goes nowhere close to understanding the issues, addressing the issues and providing an equitable, clear, certain legislative framework that would enable Indigenous rights and enable conservation. For a bill that is entitled the Wild Rivers (Environmental Management) Bill it is a farce in its failure to actually address environmental issues. We have spoken many times on this bill and variations on it and will continue to do so. We do not support it, not because we do not support Indigenous rights—because we do. We do not support it because it is a bad piece of legislation, in our view.

CHAIR —Thank you very much. Senator Xenophon, are you still there?

Senator XENOPHON —Yes, I am.

CHAIR —I need to inform you that I do not have any coalition members present in this room at this point in time.

Senator XENOPHON —What does that do for quorums?

CHAIR —It makes us inquorate, actually. We can either proceed regardless, or we would need to make a decision to suspend the hearings until we are quorate again.

Senator XENOPHON —Chair, I will be guided by you as to whatever you think is appropriate.

CHAIR —We will try to locate either of those members. I have a view that we do have witnesses who have made themselves available, so I am going to go to Senator Furner for questions first, and then I will go to you, Senator Xenophon. Hopefully Senator Barnett or Senator Boswell might return.

Senator FURNER —In the introduction of your submission you refer to the bill ‘failing to address the principles of the UN Declaration on the Rights of Indigenous Peoples. Can you expand on that particular issue, please.

Mr Esposito —There seemed to be a statement of intent from the Leader of the Opposition when he introduced the bill into the lower house that it was somehow to give some effect to the UN Declaration on the Rights of Indigenous Peoples, with particular reference to free, prior and informed consent. Neither on that particular principle nor on the declaration as a whole is any substantial argument actually made. We do not see evidence in this bill of any of the 26 or so provisions of the UN declaration being given effect.

On the matter of consent, which seems to be at the nub of this political issue, again it draws on no international references, no international laws, no precedents and no arguments as to why this in fact constitutes a provision of consent. Consent is a principle. The declarations are principles that give effect to rights. The right here is self-determination; we accept that. But again there is no mention of self-determination, there is no extension of the principle of self-determination to all Indigenous people for whom this right attaches. It is a very selective and political use of a reference to achieve a particular end, and the end itself is not to give effect, to advance or to promote the UN Declaration on the Rights of Indigenous Peoples.

Senator FURNER —On page 4 of your submission you reference clause 3 of definitions—problems and concerns. The second dot point reads, ‘empowers non-representative bodies to make decisions’. Who are those non-representative bodies you are referring to?

Mr Esposito —They can be any number of groups. It mentions a whole host of organisations. In terms of representativeness—whether that is a land trust, an Aboriginal council or the land council itself and some of its functions, or Balkanu Cape York Development Corporation, some of these organisations have mandates or limited mandates. They do not necessarily, and often do not, represent the views of the traditional owners, for country, who have the right to speak for country when it comes to the particular matter of consent. So there is actually no mandate here. Even constituted groups like the land council have a limited mandate. They have a head of power under the Native Title Act and they have a mandate provided by their members. Not all Aboriginal people of Cape York, or anywhere else for that matter, are members of their land council. In that respect, its mandate derives from its membership, not from the traditional owners of places like Cape York. The rights attach to the traditional owners, and one of those rights is to freely elect or nominate their representatives on particular matters. And so, with any such things, a mandate is required. This bill is essentially creating another head of power for a range of Indigenous organisations, some of which may or may not have some limited mandate to represent a position on wild rivers or otherwise and is now effectively handing them a power of veto.

Senator FURNER —Okay, I understand that point. Sticking with clause 3 you then go on to the definition of land and native title land. You infer that there may be situations where, for example, a partial lease held by a non-Indigenous person may cause some conflict in regard to the bill. Can you expand on that particular issue for me?

Mr Esposito —The simple fact is that this describes a native title interest as being a way in which Aboriginal interests can engage on this issue and exercise a veto. Given that the Wik decision actually emanated from Cape York and was to do with a pastoral lease and gave rise to a whole body of native title law, it is pretty clear that native title rights and interests exist in the pastoral leases stakes, whether it is owned by Aboriginal people or non-Aboriginal people. The bulk of the pastoral properties in places like Cape York are owned by Aboriginal people, but, beyond doubt, in almost every instance they have native title rights and interests attached to them, native title claims over them and so on. So it would appear from this bill that the native title claimant or holder with respect to rights and interests in a pastoral lease—coexistent rights and interests in that sense—owned and operated by a non-Indigenous person would be able to exercise their native title rights in that property to veto a declaration.

Senator FURNER —You say in your submission that the bill will lead to destructive development taking place in culturally and ecologically sensitive areas. What evidence do you have of that occurring?

Mr Esposito —For example, the Cape Alumina an example—which, I might say, was a proposal that preceded in the full knowledge of the Wild Rivers Act and the pending nomination of the Wenlock River. Had the wild rivers initiative not been in place and the declaration proceeded, that area would for all intents and purposes have been exposed to the full impact of broadscale bauxite mining. That would have had massive impacts on sensitive ecological systems and very important cultural areas. So there is no doubt that, as a regulatory mechanism, it prevents certain types of destructive activities close to, or in, the import river systems and the catchment at large. Without that regulation you are essentially exposing vast areas of places like Cape York, the Gulf of Carpentaria and the Channel Country, which is where these rivers predominantly are, to a much less regulated—and, in many respects, unregulated—industrial development approach. As we have argued before, the scheme is an important piece in the whole regulatory apparatus to ensure both sustainable development and the protection of critical natural and cultural assets.

Dr Seelig —The other thing that wild rivers does that nothing else will do is provide a whole of basin system level of protection. It is about stopping destructive development in particular places, but it is also about ensuring that such destructive development does not interfere with the rest of the river system. There is nothing else that would protect the river in the way that the wild rivers declaration under the Wild Rivers Act does.

Senator FURNER —So, using the Cape Alumina example, if the state legislation on wild rivers was not in place you would have seen the demise of Coolibah Springs and Bluebottle Spring—essentially, the upper reaches of the Wenlock River. Is that what you are suggesting?

Dr Seelig —That is right—the buffer zone that the wild river declaration created on the Wenlock River itself and special features, including the Coolibah Springs complex. There would have been no buffer zone. Strip mining, as we know, involves bulldozing the forests and digging out metres of dirt and mining out the bauxite, and that exposes lot of the river to run-off and a whole range of the effects of the mine—let alone the fact that bulldozers are running around close to a pristine river. None of that would have been prevented. The impact that might have had on the estuary downstream and potentially upstream is untold. It is hard to imagine that you would allow such mining in such an environmentally and culturally important area, but it was the wild rivers declaration on the Wenlock River that prevented that from happening.

Senator FURNER —We have heard today from some witnesses that what wild rivers does is lock up the land. What is your view on that sort of expression?

Dr Seelig —Anthony will probably expand on this, but in summary the way wild rivers works is it creates a regulatory framework that uses planning law and environmental protection arrangements to ensure that the most destructive development cannot happen in and very close to the most sensitive areas of a river system but it allows a whole range of sustainable economic development activities, as well as recreational and cultural activities, in the same areas and facilitates a whole range of development, including mining for better or for worse, in other parts of the river basin.

CHAIR —We did not get a chance this morning to ask Balkanu or the Cape York Land Council their view of this, but clearly the definition of ‘owner’ is now changed in this legislation. It is not consistent with the definition in the Wild Rivers Act. A number of pieces of legislation were cited by our first witnesses. The Queensland government say that the analysis of that definition is not right. Section 5 actually requires written consent from an owner for land to be regulated under the Queensland act but any consultation requirements are going to be left to regulations. We do not actually have any regulations with this bill. We have not seen them. They have not been provided. We do not even have an explanatory memorandum yet. This might be outside your brief, but I am wondering what happens when there is conflict between an owner of the land and traditional owners who might be identified as such under any native title act. Is there a perceived conflict now with the change in this definition?

Dr Seelig —Yes, and I will ask Anthony to expand on this. This new bill is a rework of a previous bill. One of the critiques of that previous bill was that it did not define ‘owner’ properly. In our view, they have gone from a bad bill to an even worse bill by adding complexity but not adding any clarity or transparency as to who is intended to be captured by the act other than in our view the kind of real intent which is simply to stop wild river declarations from happening if at all possible. In our view, the definitions of ‘owner’ are confused. There is certainly no consistency between this bill and the Native Title Act and how wild rivers currently works. I am sure Anthony will provide you with a more specific response.

Mr Esposito —The potential for problems here is huge. These are already existing issues. The bill seems to be bringing every conceivable Aboriginal property ownership under the ambit of ‘owner’. This runs contrary to a whole bunch of things or it extends rights in property to Indigenous people that are not enjoyed by others. So in the first instance of course you have traditional ownership, and that is what most traditional owners think of as ownership. Those traditional owner communities form the basis of native title claims and native title holdings and the internal governance of those native title groups.

Then you have these overlays created through historical processes of one sort or another where you have things like land trusts, which are old reserve lands, and DOGITs, deeds of grant in trust, lands in Queensland that have been handed back to trusteeships for the general interest of Aboriginal people. That is property in a technical sense. The land trust is ‘owner’ in a technical sense. Whether it bears an actual relationship to the traditional owners is left out of the equation. In our experience in many instances it does not and that itself gives rise to a set of conflicts.

Then you have conceivably any piece of property—for example, freehold or a pastoral lease. In conventional terms it has been bought by an Indigenous interest that is also an owner and would seem to be brought under the ambit of this bill. This is where I talk about the extension of rights and where the danger lies in this. How do you argue that a leasehold property operating under the tenure system when owned by an Aboriginal person constitutes ownership that comes with a veto over an environmental regulation, whereas a pastoral lease under pastoral legislation when owned by a non-Indigenous person does not carry that veto? Quite simply, it sheets home to the idea of an Aboriginal person with any interest in land is an owner who should have a UN inspired right to oppose the environmental regulations of the day. For us this sets up so many additional layers of problems, some of which already exist, and it will compound a number of problems.

Senator XENOPHON —I thank you for your submission and giving evidence on this. I have had a number of discussions with both of you in relation to this issue. My concern is that when I spoke to Indigenous individuals in communities in Cape York, in Aurukun, in Coen and in Lockhart River they felt that they were not consulted and that they did not give their consent to these declarations in any meaningful sense. Do you acknowledge that more could be done to appropriately consult with communities and get consent in the true sense of the word before such declarations are made?

Dr Seelig —I suppose the Wild Rivers consultation process is a Queensland government process and we understand that it is not designed to be a consent based process per se. Obviously the purpose of consultation is to identify issues that might be of concern to individual traditional owners or communities and to discuss and engage with people about the idea of the Wild Rivers protection being made and so on. I cannot speak for how thorough the Queensland government consultation process was, although we understand there were hundreds of meetings and interviews. Balkanu themselves were contracted by the Queensland government to help run the consultation process for the Archer, Stewart and Lockhart rivers—at least to the extent of facilitating access to traditional owners. As we discovered later on, because they met with us, they were brokering a collective submission on behalf of a number of—

Senator XENOPHON —I put some questions on notice to the Queensland government and they will give more details about the consultation process. I just wanted to ask both of you, given the extent of the work you have done in that area: how important do you consider it to have a meaningful process of consultation and consent for the local community? Or do you think that it is not appropriate, given the framework of the Queensland government legislation?

Mr Esposito —It is most definitely appropriate and important. We have been advocates for the engagement of Indigenous people in this conservation initiative right from the start—so there is no question in our mind. The question hinges on how those consultations happen, what level of negotiation is involved and how final decisions are made. I think this is where all of the contention lies.

In my experience of any level of government throughout my entire life their consultations with Indigenous people can always be improved. There is no doubt about that, and this is no exception. To the Queensland government’s credit, they have been progressing this scheme over the last five years. It is a much more robust system than it was at the outset. It is all the better for the negotiations and the amendments that have taken place. The extent to which a government can consult with every Indigenous person in that situation is an open question. I would suggest that the representative bodies of the regional organisations have exactly the same set of problems in terms of reaching everybody to get informed views into the mix, but there is, no doubt, a higher level of engagement already going on. It is appropriate, it should continue and it could be improved, but that is no reason to dismiss the Wild Rivers Act. The Wild Rivers Act does exactly what it is intended to do, it does it in a pretty fair and transparent manner and it is constrained entirely by the Native Title Act, in our understanding. Therefore, any questions of consultation, negotiation or participation in decision-making are best addressed at the rights level through some appropriate legal framework, and this is not one; the Native Title Act is one. The state would be constrained, if the Native Title Act were different, to do things differently. We maintain that that is the best place to address any of these concerns if in fact they are borne out.

Dr Seelig —The only other thing I would add is that I think that in normal circumstances, in a good faith consultation process like this, you would expect the cooperative assistance and the genuine efforts of the land council and anybody that they use to help run consultation processes—such as Balkanu, in this case—to actually aid the process. I think it has been very hard for us to disentangle the campaign they have been running against Wild Rivers from their having been engaged in the process of trying to assist in traditional owner consultation and even to identify traditional owners. I think the process has been made much harder by the fact that they have purported to represent traditional owner interests and were placed in a position to facilitate access to traditional owners when at the same time they were actually running a campaign against.

Senator XENOPHON —The observation I made is that, when I spoke to a number of individuals away from groups, I got the impression there was a distinct lack of satisfaction about the whole consultation process.

Dr Seelig —Senator, I make an additional point here. This is not just a failure of government; it is also a failure of those regional organisations. This is happening everywhere; I am not trying to single these guys out. The simple fact is that those regional bodies were involved in negotiations at the state level to amend the Wild Rivers Act and to do a whole range of things on a number of occasions. The question, equally, is: did they consult and have a mandate to engage in those processes? We take those sorts of negotiations and dealings in good faith and have done for many years, and we have been involved with them for many years through things like CYDC. The simple fact is that we know that there is no widespread consultation on substantive issues going on through those regional bodies. They have a leadership that takes the community in a certain direction, and if people do not like the direction they have a hard time getting their views across.

Senator XENOPHON —Thank you for that answer. Chair, I might put some questions on notice about that to the Cape York Land Council so they can respond to that and I can get the full picture.

Dr Seelig —That would be good.

CHAIR —All right.

Senator BARNETT —I want to follow up on Senator Xenophon’s questions and make it clear that you have characterised the environment of Balkanu and others in that consultation process in a certain way and that it would be my hope that they would have an opportunity to respond, if they saw fit, in due course to the committee. Having said that, do you accept that there is considerable dissatisfaction with the consultation process? Notwithstanding everything that you have been saying, Mr Esposito and Dr Seelig, do you agree that there has been considerable dissatisfaction, particularly amongst the traditional landowners?

Dr Seelig —My response to that is: to say considerable you have to measure it. We do not have a proper measure of the level of dissatisfaction. We know what the views of Balkanu land council are, which are a handful of people whom we have dealt with over many years, so we know who we are referring to in that sense. We have seen the expressions of a number of opinion leaders across the community. We have not seen any demonstrable evidence of the extent to which the dissatisfaction is so great around those consultations other than from those voices. It is hard to say. That there is some level of dissatisfaction seems to be beyond doubt. There has been a national media campaign to give voice to it, but the size and loudness of that voice does not necessarily mean it is a widespread view. We are simply asking for some transparent evidence based assessment of what the community actually thinks in all its diverse views; not simply the views of those who oppose the wild rivers scheme.

Senator BARNETT —Let us ask the question in another way—slightly differently: what level of support is there amongst traditional landowners for the Queensland wild rivers legislation?

Dr Seelig —Again, I think it is subject to the same caveats. You have to measure it. One thing we know is that the level of support in the Gulf of Carpentaria is extremely high because each of the four traditional owner groups as well as the land council put those expressions quite clearly in writing in their submissions and their negotiations about the scheme. We understand in the Channel Country there is a high level of interest, acceptance and willingness to consult and negotiate by traditional owners in that region. We know, when it comes to Cape York, that some traditional owners, and particularly quite a number of those in the actual areas where there are declarations, who either support it or are interested in the scheme; and we know, of course, there are some who do not.

Senator BARNETT —So is it more or less?

Mr Esposito —More or less what?

Senator BARNETT —Support.

Mr Esposito —How do you want to measure it? If you want to measure it by conventional—

Senator BARNETT —I want you to use your best guess. You are on the ground. You are a witness to the committee. You are experts in the field in your area of special interest. I am asking you as to whether there is a majority who support it or a majority against it.

Mr Esposito —I will give you a simple illustration—the only one that you can get: if you are looking for a majority of community opinion in Cape York then you have to take the Cape York community as a whole. The best measure we have for that is the manner in which people vote in elections, general elections. They are part of the franchised; they vote. For three elections on the trot, the three in which the state government put forwards its wild rivers legislation in the midst of five years worth of antiwild rivers campaigning in those communities, there has been majority support for the government of the day. I take that—

Dr Seelig —Including on Cape York.

Mr Esposito —including on Cape York—to be explicitly that there is a level of acceptance, a level of agreement.

Senator BARNETT —A majority level.

Mr Esposito —A majority level of community opinion, but this is quite distinct from traditional owners and those who have the right to speak for country when it comes to such questions as a declaration in a particular catchment.

Senator BARNETT —We are a bit tight for time, but I will just draw to your attention that that is in stark contrast to the evidence of Mr Richie Ahmat, the chairman of the Cape York Land Council, this morning where he indicated—and you can check the Hansards for yourself—I think it was 85 per cent that did not support—

Dr Seelig —They were not able to qualify the 85 per cent.

Senator BARNETT —He did use the figure of 85 per cent, so you can check the Hansard.

Dr Seelig —He may well have done but also, as Anthony pointed out, you have to be clear about what you are actually measuring. If you are measuring some kind of mixed range of use, including some level of dissatisfaction with wild rivers per se, are you measuring a detailed knowledge and understanding of wild rivers and a genuine dislike for it; are you measuring a level of misunderstanding and ignorance—

Senator BARNETT —I have got your message.

Dr Seelig —or are you measuring the effect of the campaign designed to create opposition to wild rivers? I would have thought it would be impossible to disentangle what you are actually measuring.

Senator BARNETT —You have just given a measurement yourself, so you have given one estimate and they have given another. I would like to move onto another area of questioning, and it is my last area of questioning, and that is your meetings with the Queensland Labor government. Is it correct that you met with them before 1 April in the days prior to the briefing note being signed by Minister Robertson regarding the declaration for the relevant wild rivers; and when was that meeting?

Dr Seelig —Who are you addressing that to?

Senator BARNETT —I assume it was Dr Seelig but either of you could hopefully answer that question.

Dr Seelig —I could not answer that off the top of my head; I would have to go and check my diary. If you are asking whether we meet regularly with representatives of the Queensland government and, indeed, the Queensland opposition, then yes. Have we met to discuss a range of issues on wild rivers? Yes. Did we meet in the particular time frame you are talking about? I cannot recall; I would have to go and check. I do recall us having a meeting with Minister Robertson shortly after he came in, but I would have to check the date. From memory, the specific conversation was about Cooper Creek and the Georgina and Diamantina rivers. I know that there was a freedom of information application made to Minister Robertson’s office, because we were alerted to that through the FOI process and had no objection to that diary entry being released. At the time that that was being processed, I do recall checking and noting that that was actually about western Queensland rivers.

Senator BARNETT —Did you meet with the minister or his representatives regarding the Lockhart, Archer and Stewart Basin wild river declarations?

Dr Seelig —I do not want to provide a misleading answer because I do not have my diary in front of me, so I cannot provide any answer to that without checking. If I can take that on notice then, to my best ability, I will respond to that question.

Mr Esposito —Is there a point to the question?

Senator BARNETT —Are you telling us that you cannot remember?

Dr Seelig —I am saying I do not want to give a misleading response, and so I would like to take the question on notice so I can check my diary.

Senator BARNETT —Okay, if you could advise us of the meetings and the points and discussions that you had with the minister in terms of, specifically, the Lockhart, Archer and Stewart Basin declarations. Would you concede that your agreement with the Labor government prior to the election was to obtain these declarations in exchange for Greens preferences in and around Brisbane?

Dr Seelig —Absolutely not. There was no such discussion; there was no such agreement.

Mr Esposito —It is a false proposition.

Dr Seelig —It is a ridiculous proposition.

Senator BARNETT —So you did not have an agreement to exchange Greens preferences for certain lockups in Cape York.

Mr Esposito —No. It is a false proposition; the answer is no.

Dr Seelig —Can I ask why you are asking that and what evidence you would have of that.

CHAIR —Senator Barnett, I want to remind you we are actually inquiring into a piece of legislation here. We are not the electoral matters committee or any other such body of the parliament, so I am going to ask you to stick to questions related to the legislation.

Senator BARNETT —That is fine. We are tight for time. I will conclude there.

CHAIR —Thank you. Dr Seelig and Mr Esposito, we do not have any other questions for you, so I thank you both for your submission and your time this afternoon.

Dr Seelig —Thank you, Chair.

Mr Esposito —Thank you all.

[4.18 pm]