CHAPTER 2
Key issues
2.1
The Bill purports to protect the rights of traditional owners of native
title land to own, use, develop and control that land if it is within an area
declared as a wild river area under Part 1 of Division 2 of the Wild Rivers
Act 2005 (Qld) (Queensland Act).
2.2
During the course of the inquiry, the committee received considerable
information regarding the Queensland Act and wild river declarations made
pursuant to that Act. The committee notes the breadth and divergence of these
viewpoints which, in a broad sense, can be classified as either those who
support the Queensland Act and oppose the Bill, or those who support the Bill
and oppose the Queensland Act.
2.3
However, the terms of reference for the inquiry are the provisions of
the Bill, rather than the Queensland Act and the ten wild river declarations
made by the Queensland Government as at the date of writing.[1]
For that reason, this report will focus primarily on matters directly relevant
to the Bill, with reference to extraneous issues only as is considered necessary
to provide context or background.
2.4
The focal issues which the report will examine are:
- the Native Title Act 1993 (Cth) (the NT Act);
- the United Nations Declaration on the Rights of Indigenous
Peoples (UN DRIP);
- the consultation process;
- drafting issues – clauses 5 and 7 of the Bill; and
- economic opportunities in wild river areas.
Matters directly relevant to the Bill
2.5
A central provision of the Bill is clause 5, which states:
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.
2.6
Many Indigenous representative bodies and individuals strongly supported
this proposed provision.[2]
It was the subject of considerable comment in submissions and evidence, both in
terms of existing native title rights under the NT Act and the principle of 'free,
prior and informed consent' as embodied in Article 19 of the UN DRIP.
Native Title Act 1993 (Cth)
2.7
At present, Division 3 of Part 2 of the NT Act establishes a procedural
framework within which acts that would affect native title ('future acts') may
be undertaken subject to the consideration of native title rights and interests
as a pre‑requisite to the validity of the future act (the 'future acts
regime').
2.8
Submitters and witnesses were divided as to whether the Queensland Act,
or an activity or use covered by it, is a future act within the meaning of the
NT Act.[3]
Mr Greg McIntyre SC, for example, argued that the making of a wild river declaration
is a future act since the declaration:
...operates as an acquisition of the native title right to
decide how the land can be used, which was not achieved voluntarily, and so is
a compulsory acquisition. A compulsory acquisition of a native title right is
valid if done in accordance with the 'right to negotiate' under the [NT Act]...[4]
2.9
In Mr McIntyre's view, as the procedures set out in Subdivision P of the
NT Act were not adopted by the Queensland Government, the Archer, Stewart and
Lockhart Wild River Declarations (the 2009 Declarations) are invalid under both
the NT Act and section 109 of the Constitution (Inconsistency of laws),[5]
which states:
When a law of a State is inconsistent with a law of the Commonwealth,
the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid.
2.10
Constitutional inconsistency was a topic addressed in only one other
submission. Rather than examining the Queensland Act's inconsistency with the
NT Act, the Gilbert & Tobin Centre of Public Law submitted that the
Queensland Act, would be inconsistent with the Bill (if enacted) and therefore
liable to be 'overruled' to the extent of the inconsistency:
If the Bill is enacted, it would be inconsistent with the [Queensland
Act]. The High Court held in Clyde Engineering Co Ltd v Cowburn (1926)
37 CLR 466 that s 109 will be engaged where one law claims to confer a right or
entitlement that another law attempts to eradicate or diminish. The [Queensland
Act] diminishes the decision-making power of Aboriginal native title holders
over their land as would be conferred by the Bill. Enacting the [Bill] would
render the [Queensland Act] inoperative to the extent of the inconsistency.[6]
2.11
Other submitters agreed with Mr McIntyre that the Queensland Act affects
native title rights and must therefore fall within the ambit of the future acts
regime.[7]
In this context, the committee notes the relevance of section 44 of the
Queensland Act.
2.12
Subsections 44(1)-(2) of the Queensland Act provide:
44 Relationship with other Acts
(1) Other than as mentioned in sections 42 and 43, the
prohibition and regulation in a wild river area of carrying out activities and
taking natural resources are dealt with in the Acts that prohibit or regulate
the activities or taking.
(2) However, a wild rivers declaration or a wild rivers code,
in applying for the purposes of any of those Acts, can not have the direct or
indirect effect under the other Act of limiting a person's right to the exercise
or enjoyment of native title...[8]
2.13
The Cape York Land Council (CYLC) submitted that the 'shield' of subsection
44(2) does not apply because native title is significantly affected by the
operation of the Queensland Act rather than the 'direct or indirect effect
under [another] Act'.[9]
2.14
The Cape York Institute (CYI) similarly rejected that the Queensland Act
does not affect native title. It attributed its interpretation of subsection
44(2) to the view that 'native title is restricted [under the Queensland Act] to
so‑called 'traditional' activities, confined to hunting and gathering'.[10]
2.15
In contrast, the Queensland Government did not consider that the Queensland
Act, or an activity or use covered by it, is a future act within the meaning of
the NT Act. In particular:
...the operation of the Native Title Act is a very complex
piece of legislation. It is the state government's view that the passage of the
Wild Rivers Act in 2005 was not a future act for the purposes of the
Commonwealth Native Title Act; that is, the passage of that legislation did not
suppress or extinguish native title.[11]
...
In making sure that is the case there is section 44 of the [Queensland
Act] that explicitly confirms that it cannot.[12]
United Nations Declaration on the Rights of Indigenous Peoples
2.16
In relation to clause 5 of the Bill, another issue of concern to some
submitters and witnesses was the internationally recognised principle of 'free,
prior and informed consent'.
2.17
Article 19 of the UN DRIP, to which Australia is a recent signatory
(3 April 2009), provides:
States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative institutions in
order to obtain their free, prior and informed consent before adopting and
implementing legislative or administrative measures that may affect them.[13]
2.18
The committee heard a number of views regarding the Queensland
Government's compliance with Article 19 in its declaration of certain wild
river areas. Most submissions and evidence explicitly, or implicitly,
questioned such compliance on the bases of consultation processes employed to
date and also a perceived lack of good faith on the part of the Queensland
Government.[14]
2.19
Mr Greg McIntyre SC told the committee that the Queensland Act arguably
breaches Article 19 due to the nature of the consultation process
undertaken in the Cape York Peninsula:
Certainly the government has the right to enact legislation
of this kind, but before it does that I suppose the only argument would be that
where there are existing native title rights of an absolute kind then, if it is
going to behave in a way which does not arbitrarily deprive people of property,
it needs in accordance with, for example, the Universal Declaration of Human
Rights to preserve that right, and it ought to give notice, engage in a proper
process of consultation and arguably pay compensation for loss.[15]
2.20
This argument presupposes that 'existing native title rights are of an
absolute kind'.[16]
However, a representative from the Attorney-General's Department and Mr McIntyre
both noted that, broadly speaking, native title currently reflects traditional
practices, laws and customs of Indigenous claimants.[17]
2.21
Most importantly, two witnesses also highlighted that Article 19 of the UN
DRIP has not been incorporated into domestic law,[18]
meaning that federal, state and local governments are not bound to implement
the principle of 'free, prior and informed consent'. The committee notes that,
at present, only the Aboriginal Land Rights (Northern Territory) Act 1976
framework contains explicit 'free, prior and informed consent' provisions.
The consultation process
2.22
Several submitters focussed on the related principle of consultation
which, in their view, has been inadequate under the wild river regulatory
scheme. The concerns ranged from a lack of 'proper' consultation, including
failure to engage with traditional owners (either individually 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.[19]
2.23
For example, the Lockhart River Aboriginal Shire Council stated that, '[a]s
far as we are concerned, there was no credible consultation on [the Queensland
Act], nor did the Traditional Owners agree to the proposal'.[20]
In a similar vein, the Kulla Land Trust submitted that the 2009 Declarations
were made without its input or consent: '[w]e did not agree to it, we raised
issues and we were largely ignored'.[21]
2.24
However, other stakeholders told the committee that they had been
adequately consulted. Mr Murrandoo Yanner from the Carpentaria Land Council
Aboriginal Corporation (CLCAC), for example, told the committee:
I believe we were consulted appropriately. The Queensland
government came out at first and did not consult with us. They went around to
the councils. We had a big row with them and they came back and consulted
intensely and properly across the region with the native titleholders.[22]
2.25
The Chuulangun Aboriginal Corporation commented on its early involvement
with the wild rivers initiative and its consequent ability to positively impact
on the terms of the Wenlock Basin Wild River Declaration, which affected its
region:
Chuulangun Aboriginal Corporation has been involved with the
Wild Rivers initiative since 2006 and was instrumental in developing the
Indigenous guide to Wild Rivers. From 2007-10 we have secured funding under the
Wild Rivers initiative for funding to employ three full‑time rangers as
well as some capital and operating costs for the Chuulangun Ranger program.
Funding from the Wild Rangers program has assisted in the establishment of the
Chuulangun Ranger Office as well as access to a ranger vehicle to help
facilitate activities for the protection of the Wenlock and Pascoe Basins.[23]
2.26
In this context, a representative from Cape York Sustainable Futures
noted that:
...the consultation process has been targeted at certain
people, knowing the outcomes...We have found that people who are against wild
rivers and who argue against wild rivers are not consulted—or they are not
consulted a second time, if there is a second round of consultation.[24]
2.27
The committee heard that the Queensland Government consultation
processes have improved over time.[25]
Mr Murrandoo Yanner from the CLCAC told the committee:
...I believe [consultations] may have occurred differently in
the cape, and I support the right of Cape York people, or Aboriginal people
anywhere, to be consulted properly. All I can speak for is my area [in the
lower gulf region]. The Queensland government started off wrong but then they
corrected it and they should be applauded for that.[26]
2.28
Mr Anthony Esposito from the Wilderness Society also commended the
Queensland Government for ultimately recognising problems with its consultation
processes:
[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...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.[27]
2.29
At the Cairns public hearing, an officer of the Department of
Environment and Resource Management elaborated on the 'engagement' process
undertaken by the Queensland Government pursuant to the Queensland Act. In
particular, the officer acknowledged the challenge of finding an effective and culturally
appropriate way of engaging with Indigenous stakeholders in an area like Cape
York Peninsula, or in other areas that have a significant Indigenous population.
The officer confirmed the Queensland Government's intention to continue to
improve its consultation processes:
There has been a commitment from the government over a number
of years to try to improve the way in which we [engage stakeholders]...[W]e do
see that there is opportunity to continue to improve the way we engage with
Indigenous stakeholders around wild river declarations, if not least to make
sure that there is a clear understanding of the potential impact of wild river declarations
and what they do continue to provide for, in terms of economic aspirations of
Indigenous stakeholders, but also to make sure that there can be informed
feedback in relation to the features of the wild river declaration.[28]
2.30
In response to questions on notice from the committee, the Queensland
Government subsequently provided a detailed analysis of the consultation
process relating to the 2009 Declarations. A key mechanism used was the
engagement of Balkanu Cape York Development Corporation (Balkanu) to facilitate
the organisation of over 100 meetings with Indigenous stakeholders in Cape York
Peninsula.[29]
Drafting issues – clauses 5 and 7
of the Bill
2.31
The committee notes that consultation is an important feature of Division
1 of Part 2 of the Queensland Act. Based on evidence received throughout the
inquiry, it is clearly a crucial issue for the traditional owners who would
potentially be affected by the operation of the Bill. Accordingly, clause 5 of
the Bill – which provides for the consent of Aboriginal traditional owners to
the making of a wild river declaration – is particularly relevant this context.
2.32
Submitters and witnesses generally supported the stated intention of
this provision but also identified certain terminological problems with its
drafting. Of particular concern was the vague requirement for agreement from traditional
owners. The term 'agreement' attracted substantial comment,[30]
as did use of the term 'traditional owners' (not defined in either the Bill or
the NT Act).
2.33
For example, the Chuulangun Aboriginal Corporation advised that a wild
river area might have a number of traditional owner groups and tribes, each
with different perspectives and aspirations for land management and development
of their homelands:
The risk of this is that effectively Traditional Owners
upstream might be able to allow a large scale development regardless of the
management, perspectives and decisions of Traditional Owners or other land
managers downstream. It is not right that one group of Traditional Owners
should have the right to veto protection of rivers.[31]
2.34
The Nyacha Kumopinta Aboriginal Corporation emphasised the importance of
obtaining consent from the right traditional owners:
In order to get consent there needs to be a consensus from
the right traditional owners that speak for their Homelands. This is the only
way to follow our traditional lore.[32]
2.35
Adopting a slightly different approach, the Wilderness Society
questioned 'the means by which 'the agreement of Aboriginal traditional owners'
is to be gained or refused'.[33]
Its focus was on clause 7 of the Bill, which provides that the Governor‑General
may make regulations, including for: seeking the agreement of Aboriginal
traditional owners under the Bill; negotiating terms of such agreement; and giving
and evidencing the agreement.
2.36
The Wilderness Society noted that clause 7 contains too little detail to
provide any real guidance as to the meaning of 'agreement' of traditional
owners:
The complex issues of traditional ownership and Indigenous
decision‑making and representation, alongside the principles of river
ecology that underpin the Wild Rivers environmental regulations, remain almost
entirely unaddressed [by the Bill].[34]
2.37
Australians for Native Title and Reconciliation concurred, stating that,
in the absence of any draft regulations, it is impossible to tell whether the
consultation processes proposed by the Bill would be any better than those
currently in place:
If the Bill were to become law, in the absence of such Regulations,
it is difficult to know how it might operate in practice.[35]
Economic opportunities in wild
river areas
2.38
Subclause 4(3) of the Bill is stated to protect the rights of
traditional owners of native title land within wild river areas to own, use, develop
and control that land.
2.39
Use and development of native title land within a wild river area
captured the attention of many submitters and witnesses who consider that the Queensland
Act has adversely affected economic opportunities in Cape York Peninsula. Those
submitters and witnesses argued that the Bill will restore those economic
opportunities for traditional owners in that area.[36]
2.40
Professor Jon Altman took a broad policy view and advocated the granting
of commercial rights to develop land to traditional owners in the region:
Without resource rights Aboriginal goals to either integrate
into the market or to earmark resources for local and regional beneficial uses
are limited... To create commercial opportunity in remote locationally
disadvantaged regions like Cape York will require the allocation of any
existing commercial advantage possible to Aboriginal land owners in the region,
as well as the provision of the maximum leverage in negotiations that can be
provided either by the allocation of 'special law' resource rights or free,
prior, informed consent rights.[37]
2.41
Similarly, the Wilderness Society recognised the merit in enabling land
development by Indigenous peoples as a pathway out of welfare and disadvantage.
However, it submitted that there is a far more complicated and often
contradictory set of issues than are presently being considered in the context
of the Bill:
The logic of the Bill suggests that social justice concerns
in relation to remote area Indigenous people can be addressed by simply removing
environmental regulations, and that development by Indigenous people should be
an unfettered right because of social disadvantage, but that the environment
will be somehow protected none-the-less.[38]
2.42
The majority of submitters and witnesses did not engage in a policy‑oriented
debate. For these organisations and individuals, the real issue is how a wild
river declaration affects the day‑to‑day economic aspirations of traditional
owners in an affected area. In addition to limited investment opportunities,[39]
the committee heard that the designation of management areas – particularly
high preservation areas –stymies the use and development of land within a wild
river area.
High preservation areas
2.43
As indicated in Chapter 1, wild river areas are subject to a number of
statutory controls, which regulate and/or prohibit certain activities within
management areas. High preservation areas are the most protected, and some submitters
and witnesses argued that the designation of such areas in particular is not
always reasonable or practical.[40]
2.44
In describing the overall effect of a wild river declaration on
development in a wild river area, the Cape York Land Council submitted:
It all depends on whether it is allocated to high
preservation areas or preservation areas in the declaration...[I]t is fair to say
that development opportunities are substantially constrained given the
constraints that automatically apply with a wild river declaration,
particularly around vegetation clearing and affecting in‑stream and
near-stream water lease.[41]
2.45
Balkanu concurred with this assessment:
Over the past twelve months. Balkanu Cape York Development
Corporation has sought legal advice from a number of sources in relation to
various activities within High Preservation Areas. It has become clear that due
to the relationship between the Wild Rivers Act and Vegetation Management Act, activities
such as the construction of tourist cabins and construction of indigenous
housing and campground facilities within a High Preservation Area would either be
prohibited or highly problematic.[42]
2.46
Some submitters especially noted that the wild rivers regulatory regime limits
only certain forms of development in high preservation areas. By way of
example, the Chuulangun Aboriginal Corporation submitted:
In regard to the Wenlock Basin the 1km protection zone around
the river is a sound approach to river protection, particularly given the
location of many waterholes within this zone, and the tight association of
groundwater/surface water interactions in this area. In reality, only high
impact developments are affected in this area, including strip mining,
intensive agriculture (eg. feedlotting), and building dams. Homelands
development and building infrastructure need only meet simple criteria to
happen in this area and existing developments are not affected.[43]
2.47
Mr Donald de Busch from the Nyacha Kumopinta Aboriginal Corporation
informed the committee that the Bill will not impact on its development plans:
We have aspirations to have sustainable ecotourism ventures,
and we do not feel at all that would be stopped by the legislation one bit.[44]
2.48
At the public hearing in Cairns, the Carpentaria Land Council Aboriginal
Corporation described in detail the beneficial wild river ranger program
instituted under the Gregory, Morning Inlet, Settlement and Staaten Wild River
Declarations. Mr Murrandoo Yanner indicated that more wild river declarations
would be welcome in their region:
We are wild about wild rivers, in a good way. We love it. If we
had our way the whole of the lower gulf would be covered in wild river
declarations.[45]
2.49
Although the number of rangers employed under the wild river ranger
program might be limited, Mr Yanner put in perspective the impact that this
initiative has had on the local Indigenous population:
[The Queensland Government] should be commended for the first
time ever in agreeing to fund regional bodies or local Aboriginal groups in a
ranger program directly. All other ranger programs in Australia are usually
done from the Commonwealth government, so that has been something different by
the Queensland government. There is a promise, I believe, of up to 100
throughout the gulf and cape, and we certainly want a lot more down in the
lower gulf because the guys we do have are doing great work and the more we get
the more great work we will do. These are real jobs, too. They are on
three-year contracts; they are on a bloody good salary.[46]
2.50
Mr Greg McIntyre SC agreed that the Queensland Act does not prevent all
developments but raised the issue of 'red tape' in the development application
process:
It is sometimes said in the press that that is the effect of
it. It is not as far‑ranging as that and it does allow various forms of
agricultural and other development, but particularly in the high protection
areas it restricts it to some extent...my concern is that it adds another quite
substantial layer of intricate regulation...[47]
2.51
Mr David Yarrow from the CYLC developed this theme, telling the
committee that in practical terms the wild rivers legislation impedes
development due to its regulatory complexity:
If there were some legal or administrative measures that
would actually make environmentally compatible, commercially viable opportunities
for business communities more accessible compared to the degree of regulatory
burden that would be great.[48]
2.52
In its submission, the Queensland Government informed the committee that
development can and does occur in wild river areas:
Since the first wild river declarations were approved under
the [Queensland Act], there have been approximately 173 development
applications made (this includes applications for environmental authorities,
riverine protection permits, vegetation clearing and mining tenements). Of
those which have been finalised, there have been no refusals.
...
Many new developments can and do proceed in wild river areas.
Some of the developments which are able to proceed include offstream dams,
native vegetation clearing, road development and maintenance, access to quarry
material, essential services such as water and sewerage treatment, grazing and
farming, tourism operations, development of outstation and homesteads, and yes,
even mining activities.[49]
2.53
At the Cairns hearing, a representative from the Queensland Department
of Environment and Resource Management submitted that the wild rivers
regulatory scheme does not create any additional regulatory burden, or red tape
for landowners:
...the wild rivers regime...provides an overarching framework
which calls up other pieces of legislation, so the approval is still provided
under that legislation. Someone submitting a development approval would do so
to the local government, most usually as the assessment manager, and the
assessment manager would need to have regard to the wild rivers code. If there
was an issue of a commercial fishery or a charter fishing operation then that
decision would be made to issue a permit under the Fisheries Act by the chief
executive, but the chief executive would have regard to the wild rivers code...[T]here
is not so much a burden on applicants and participants in that process, in
terms of bogging down of red tape, it is that the assessment process managed by
assessment managers has regard to the natural values of these unique systems.[50]
2.54
The representative from the Queensland Department of Environment and
Resource Management also noted that, where an activity is banned in a high
preservation area, there is scope – via a property development plan – for an
assessment manager to:
...consider the development plan, the specific circumstances of
that project and for there to be amendment provided for in terms of the wild
river declaration. There is an explicit process to have a case-by-case approach.[51]
2.55
In its submission, the Chuulangun Aboriginal Corporation presented an
analogous view:
...tourism ventures are enhanced by wild river protection, not
hindered, and the approval process is made through the normal local Government
development process. No actual examples of an Indigenous development that will be
hindered by [a] declaration have been named.[52]
Status of development applications
2.56
The issue of how many development applications have been received,
approved and rejected under the Queensland Act to date was also canvassed in
submissions and evidence.
2.57
The Queensland Government advised that 'there are no examples known of
an application being refused under the provisions of the [Queensland Act] in a
wild river area'. Information provided to the committee shows that 113 of the
173 applications received to date have been approved, with decisions pending for
45 applications. Only two of these 45 applications do not relate to mining
tenements or mining activities. Fifteen applications (also related to mining
activities) are no longer current.[53]
2.58
The Queensland Government also noted that high preservation areas cover
16% of the Archer wild river area, 19.1% of the Lockhart wild river area, and
17.2% of the Stewart wild river area.[54]
This means that the majority of land within these areas is predominantly classified
as a preservation area, within which a wide range of economic opportunities is
possible, including:
- continuation of existing developments;
- grazing;
- recreational fishing;
- boating or refuelling;
- traditional cultural activities;
-
native title;
- land management such as clearing weeds;
- traditional burning;
- taking water for stock or domestic needs; and
-
improving pasture (unless using risk species).[55]
2.59
There was some contention as to whether the Queensland Government's
figures accurately portray the impact of the Queensland Act on Indigenous traditional
owners and their development aspirations. The CYLC submitted, for example:
Many proposed activities on country subject to the declarations
will require Traditional Owners to engage in resource intensive assessments of
development proposals, including gaining legal and scientific advice. Given the
practical realities of many Indigenous peoples' lives in Cape York, such
requirements will smother proposals from Traditional Owners before they even
get to the Government for consideration. They are regulatory brick walls rather
than 'restrictions'.[56]
2.60
At the Cairns public hearing, several Indigenous representative
organisations advised that they were not aware of any applications that had
been refused under the Queensland Act.[57]
According to some witnesses, however, any emphasis on approval or otherwise of development
applications to date is misguided, with opposition to the wild rivers regulatory
regime being an issue of long‑term native title rights. As Mr Noel
Pearson from the CYI told the committee in Canberra:
It is not a question for 2009. It is a question of whether my
son can make an application in 20 years time. It is a question of whether my
grandchildren can make an application in 30 years time. My entire advocacy in
relation to this question has been to preserve opportunity. We do not have a pocketful
of applications that we are desperately trying to get approval for. What we are
saying is that we need to preserve opportunities for future generations to use
their land.[58]
2.61
However, Queensland Government representatives maintained that the
greatest deterrent to development over the past year has been the uncertainty
created by various misinformation campaigns:
...concerted misinformation...has promoted the view that wild
rivers declarations stop all development. This is what has created the most
uncertainty for Indigenous economic development on the cape. The truth is that
the development can occur under that framework and that development is
occurring in wild river areas.[59]
2.62
The confusion led the committee to query the process by which a
traditional land owner would make a development application in Cape York
Peninsula. The response from Balkanu was enlightening: it highlighted a clear conflict
of interest in Balkanu's role of assisting Indigenous land owners to
economically develop their land while at the same time strongly advocating the
abolition of the wild rivers regulatory scheme established under the Queensland
Act:
Senator McLUCAS—...We have an assertion from different sides in
this argument that various economic uses will or will not be allowed under the
Queensland legislation. We have a very limited way to test those assertions and
I suppose as the Indigenous economic development organisation I am wondering
what your role is in terms of assisting Indigenous people to be able to make
applications through their local government authority by and large. What role
do you have?
...
If an Aboriginal person from Cape York in one of the wild rivers
regions who is a traditional owner wanted to undertake a tourism venture, would
they come to Balkanu?
Mr Piper—They would come to Balkanu and we would try to
assist them them.[60]
2.63
The representatives from Balkanu continued to explain that one of the
forms of assistance that Balkanu would provide to a traditional owner would be
advice concerning a proposed application. Members of the committee then drew
attention to the differing interpretations of the Queensland Act and the impact
of classification of a management area as a high preservation area or a
preservation area:
Senator McLUCAS—This is the point...How do we, as a committee,
have any ability to make a judgement about [the Queensland Government and your]
two sets of assertions? It is almost impossible unless we have a test.
Mr Piper—I think you can have a hypothetical proposal and get
your own advice.
Senator McLUCAS—Would Balkanu, as the Indigenous economic
development organisation for Cape York Peninsula, be part of that? The point I
am making is that you are running a campaign against a piece of legislation. It
is your right to do that and I support your right to do that. I might not agree
with you, but I would support your right. Yet you are also the organisation to
whom an Indigenous person would come to actually achieve an economic outcome.
There is a problem.[61]
Alleged breach of process
2.64
During the course of the inquiry, the committee received evidence
alleging a breach of process by the Queensland Government in the making of the
2009 Declarations.
2.65
Division 1 of Part 2 of the Queensland Act sets out the process which
the minister (currently the Minister for Natural Resources, Mines and Energy)
must follow in making a wild river declaration. The statutory requirements
include:
- the publication of a notice of intention to declare a wild river
area;
- the preparation of a proposal for the wild river area and
publication of a notice about the proposal;
- a description of matters which the minister must consider in
preparing a wild river declaration;
- the making of a decision whether to declare a wild river area;
and
-
approval by the Governor in Council of a wild river declaration.[62]
2.66
In particular:
- section 13 of the Queensland Act states:
13 Matters Minister must consider
(1) In preparing a wild
river declaration, the matters the Minister must consider include-
(a) the results of community consultation on the declaration
proposal; and
(b) all properly made submissions about the declaration proposal;
and
(c) any water resource plan or resource operations plan that
applies to all or part of the proposed wild river area.
...
(3) Subsection (1) does not limit the matters the Minister
may consider.
- subsection 15(1) of the Queensland Act states:
15 Deciding whether to make declaration
(1) After considering the
matters mentioned in section 13 and any other matters the Minister considers
appropriate, the Minister may-
(a) declare the area to be a wild river area; or
(b) decide not to proceed with declaration of the wild river
area
...
- subsections 16(1)-(2) of the Queensland Act state:
16 Approval of wild river declaration
(1) The Governor in
Council may, by gazette notice, approve the declaration of a wild river area.
(2) The declaration has
effect when-
(a) the declaration is approved by the Governor in Council;
and
(b) the approval is notified in the gazette.
...
2.67
Some submitters and witnesses raised the possibility that the statutory
process (particularly sections 13 and 15 of the Queensland Act) was not
properly followed by the Queensland Government.[63]
2.68
By way of background, the Queensland state election was held on 21 March 2009,
with the current minister, the Hon. Stephen Robertson MP sworn in on 26 March 2009.
On 2 April 2009, the Governor in Council approved the 2009 Declarations,
and this approval was gazetted on 3 April 2009.
2.69
According to some submitters and witnesses, there are two contentious
dates within this timeline: 30 March 2009, when the declarations were
purportedly forwarded to the Governor in Council for approval; and 1 April
2009, when Minister Robertson decided to make the 2009 Declarations.
2.70
The CYI argued that the minister who complies with section 13 of the Queensland
Act must be the same minister who performs the function under
section 15 of the Queensland Act. CYI asserted that this did not
occur because the process commenced under the previous minister, the Hon. Craig
Wallace MP, and concluded with Minister Robertson:
...the Archer, Lockhart and Stewart declarations were already
proceeding to the Governor in Council on 30 March 2009, two days before they
were supposedly declared by Minister Robertson on 1 April 2009...[64]
2.71
Balkanu supported this argument and especially queried whether Minister
Robertson had in fact made the 2009 Declarations and on what date:
Contrary to established practice, the Wild River Declarations
gazetted on 3 April do not include a date on which the declarations were
made, nor identify the Minister who made the declarations. Balkanu Cape York
Development Corporation and Indigenous leadership have written to the Minister,
the Premier and the Governor seeking to clarify which Minister made the Wild
River declarations, the date that the declarations were made, and a copy of the
instrument signed by the Minister by which the declarations were made.[65]
2.72
Balkanu advised that information it obtained under a Freedom of
Information request does not evidence the existence of any document by which
Minister Robertson made the 2009 Declarations, leading Balkanu to conclude
'that such an instrument does not exist'.[66]
2.73
In response to these concerns, the Queensland Government denied that
there had been any breach of process. At the Cairns public hearing, a
representative stated that 'the full statutory process...was absolutely followed'.[67]
In an answer to a question on notice, the Queensland Government elaborated:
The previous Minister responsible for the Wild Rivers Act,
the Honourable Craig Wallace MP, commenced this process when he published
Notices of Intent to declare the three basins as wild river areas on 23 July
2008. It is not an uncommon occurrence for more than one Minister to be
involved in a statutory process which takes a considerable amount of time,
given governments and Ministers will change from time to time.
All relevant material was provided to the Honourable Craig
Wallace MP on 18 February 2009. These materials were again submitted to [the]
Honourable Stephen Robertson MP on being sworn into office.
...
[T]he Minister began actively considering these matters and
was briefed by departmental officers...
On 1 April 2009, the Minister signed the final decision to
seek approval by Governor in Council to declare the Archer, Stewart and
Lockhart Basins as wild river areas...This decision was made pursuant to section
15 of the [Queensland Act].[68]
2.74
A copy of the Ministerial Briefing Note bearing Minister Robertson's
approval (on 1 April 2009) was included in the Queensland Government's
submission. A copy of the Gazettal Notice was also included in further
information provided to the committee.[69]
Constitutionality of the Bill
2.75
Subclause 4(1) of the Bill states that it relies on the Commonwealth's
legislative powers under paragraph 51(xxvi) of the Constitution, which
provides:
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.[70]
2.76
The committee received only two submissions which examined the Bill's
source of legislative authority. In particular, the Gilbert & Tobin Centre
of Public Law stated that the Bill meets the constitutional criteria to be a
valid enactment under section 51(xxvi) of the Constitution.[71]
If enacted, as noted in paragraph 2.10 above, the Bill might be inconsistent
with the Queensland Act and inoperative to the extent of that inconsistency in
accordance with section 109 of the Constitution.
2.77
The Carpentaria Land Council Aboriginal Corporation suggested, however,
that the Bill might be trying to overreach its constitutional authority as the
definition of 'native title land' in clause 5 of the Bill is ambiguous, making
it difficult to precisely determine 'the intent of the Bill and, in particular,
its effect on the operation of the Native Title Act'.[72]
Committee view
2.78
Throughout the inquiry, the committee received a vast amount of evidence
regarding the passage of the Queensland Act and the processes by which wild
river declarations have been, or are to be, made. Most of this evidence
concerned the Cape York Peninsula and the Archer, Stewart and Lockhart Basin Wild
River Declarations. The committee notes, however, that the Queensland Act, and
the regulatory scheme which it establishes, applies throughout the state of
Queensland and, as a result, impacts upon many Indigenous and non-Indigenous
peoples.
2.79
There were several points of view put to the committee across a range of
different issues in this inquiry. The committee acknowledges these divergent views
and the fervour with which submitters and witnesses advocated their respective positions.
Clearly, the wild rivers initiative deeply touches the hearts and minds of the
people who are most likely to be affected by the wild rivers regulatory scheme,
as well as those people who passionately support the environmental objectives
of the scheme.
2.80
The committee is not able to make any conclusive assessments regarding certain
viewpoints since the weight of evidence does not support any one view over
another. In the circumstances, it would be inappropriate for the committee to
make any determinations on those viewpoints.
2.81
In particular, the committee considers that the alleged breach of
process by the Queensland Government in the making of the Archer, Stewart and
Lockhart Basins Wild River Declarations is not 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. However, the committee
notes that the Queensland Government has provided documentation and explanation
which would appear to support its contention that there was no breach of
process in the making of those declarations. Apart from this observation, the
committee makes no further comment on the matter except to note that, prior to
the tabling of this report, the Cape York Land Council instituted proceedings
in the High Court of Australia challenging the validity of the 2009
Declarations made under the Queensland Act.
2.82
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. 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.
2.83
In relation to Article 19 of the UN DRIP, the committee notes only that
the principle of 'free, prior and informed consent' is not binding in
Australian law, nor have the federal, state and territory governments
overwhelming embraced the principle. Criticisms of the Queensland Act based on
this international principle of law are therefore not well founded.
2.84
In contrast, the principle of consultation commonly features in the
development and implementation of legislation, and is evidenced in this
instance by the Queensland Act. The committee commends the Queensland
Government for acknowledging the need for, and implementing, a statutory
consultation process in the wild rivers regulatory scheme. However, the
committee expresses concern as to how the consultation process is being
conducted, with many affected stakeholders voicing a myriad of concerns in
relation to certain aspects of that process. Other stakeholders felt that the
consultation process had been conducted effectively. The committee welcomes
attempts to improve the consultation process, where necessary, and urges the
Queensland Government to continue making headway in this regard even where numerous
or divergent views complicate the process and the making (or not) of a wild
river declaration.
2.85
The committee notes that the use and development of native title land
within a wild river area is regulated by the Queensland Act and that areas
designated as high preservation areas contain more stringent controls than
preservation areas. In some cases, these controls prohibit certain types of
activity and the taking of natural resources. However, the committee acknowledges
evidence from Indigenous organisations that activities which are taking place –
such as the wild river ranger programs – provide job opportunities and are
positive outcomes under the wild rivers regulatory scheme.
2.86
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 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.
Recommendation 1
2.87 The committee recommends that the Senate should not pass the Bill.
Senator Trish Crossin
Chair
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