DISSENTING REPORT BY COALITION SENATORS
1.1
The Queensland Government's wild rivers initiative and its legislative
framework has undoubtedly created widespread and passionate debate. It was
apparent early in the inquiry that the committee could not avoid this debate:
to examine the Bill also requires examination of the state legislation and its
effect on traditional owners of native title land in wild river areas.
1.2
The topics canvassed in this dissenting report are:
- a breach of statutory processes by the Queensland Government in
2009;
- the scope of wild river declarations;
- economic opportunities in wild river areas;
- consultation processes employed by the Queensland Government;
- the Native Title Act (1993)(the NT Act); and
- constitutionality of the Bill.
A breach of statutory processes by the Queensland Government in 2009
1.3
Division 1 of Part 2 of the Queensland Act sets out the process which
the Minister for Natural Resources, Mines and Energy (Minister) must follow in making
a wild river declaration. The most pertinent of the legislative provisions are subsections
13(1) and 13(3), subsection 15(1) and subsections 16(1)-(2) of the Queensland
Act.
1.4
Some submitters and witnesses raised concerns that the statutory processes
(particularly under sections 13 and 15 of the Queensland Act) were not properly
followed by the Minister in the making of the 2009 Declarations.[1]
1.5
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.
1.6
Cape York Institute (CYI) submitted that the Minister who performs the
function under section 15 of the Queensland Act must be the same person who has
complied with section 13 of the Queensland Act. CYI argued that this did not
occur with the process that took place under Minister Craig Wallace and
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...[2]
1.7
Coalition senators conclude therefore that, as at 30 March 2009,
Minister Robertson had not considered the matters as required under section 13
of the Queensland Act with the view that he would be the minister required to
make the wild river declarations under section 15 of the Queensland Act. It is
likely that this consideration did not occur until Minister Robertson was
provided with a ministerial briefing note (CTS 02637/09) on 1 April 2010 – by which
time it was too late to give meaningful consideration to the matters raised because
the declaration documents would have already been finalised for approval by the
Governor-in-Council.
1.8
Information provided to the committee also shows that, in a departmental
email dated 30 March 2009 (4.59pm):
[I]t appears the previous Minister did not sign CTS 0118/09,
to approve the declaration proceeding to GIC. If this is the
case, I propose that I will renew this CTS for the Minister's information and
approval.[3]
1.9
The Queensland Department of Environment and Resource Management
(Department) attempted to explain the timing of this email as an
'administrative' process and in its evidence sought to clarify as
follows:
[Minister Wallace] was beginning the process. The new
minister took over. He had all the material in front of him. What I was asking
there was whether a decision had been made prior to the election and, if not,
then the new minister is making the decision and therefore that had to be
finalised. The decision was being made. All I was asking for was the
administrative process to get the sign-off on that decision.[4]
1.10
However, another departmental email dated 30 March 2009 (4.57pm) reads:
Also, [a departmental officer] has asked that I make sure the
Minister's office has been made aware of the fact that they are proceeding to
GIC.[5]
1.11
Coalition senators interpret these emails and the evidence to the
committee as evidencing that, late on 30 March 2009, two days before the
minister supposedly made the 2009 Declarations, Minister Robertson was not
aware that he would be required to make a decision on the declarations of the
Archer, Lockhart and Wild Rivers.
1.12
Balkanu Cape York Development Corporation (Balkanu) highlighted another
irregularity:
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.[6]
1.13
Balkanu submitted that information obtained by it under a Freedom of
Information request did not evidence the existence of any document by which
Minister Robertson made the 2009 Declarations. This led Balkanu to conclude
'that such an instrument does not exist'.[7]
1.14
Following the Cairns public hearing, the Queensland Government made a
submission to the committee. The submission included a copy of a Ministerial
Briefing Note bearing Minister Robertson's approval (on 1 April 2009) and purported
to attach a copy of the gazettal notice. However, the copy of the gazettal notice
was not actually provided until the committee made a further specific request.[8]
1.15
The Ministerial Briefing Note recommended that the minister:
- approve the declarations of the Archer, Stewart and Lockhart
basins as wild river areas and the progression of documents to the Governor-in-Council
for final approval and gazettal; and
-
note the submissions and results of consultation on the three
declaration proposals for the mentioned basin areas.[9]
1.16
Coalition senators requested a copy of the instrument that must have
flowed from the Ministerial Briefing Note, and in response to this question on
notice, the Department advised:
The reference in the Attachment E briefing note is to
highlight for the Minister that changes from the declaration proposal were made
as a result of the consultation process, but this was subject to his decision
to approve the changes. 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.[10]
1.17
It appears to Coalition senators that the minister is relying on the
Ministerial Briefing Note as the instrument; however, the final declarations
were not attached as required under the Queensland Act, highlighting another
inconsistency and raising further questions regarding the making of the 2009
Declarations.
1.18
Consistent with the departmental email referred to above (at paragraph
1.8), and the Ministerial Briefing Note itself, a representative of Balkanu
told the committee:
...Minister Wallace did not sign that briefing note, so we know
that Minister Wallace may not have considered the results of public consultation
or the submissions himself. We also know from [the departmental] email and we
know from the FOI material that that briefing was made up of 341 pages, so it
was quite an extensive briefing.[11]
1.19
This evidence reiterates the concern that more than one Minister was
involved in the statutory process of making the 2009 Declarations, as well as
raising the question of how well Minister Robertson could have complied with
the statutory requirement to consider the results of community consultation on
the declaration proposal (pursuant to section 13 of the Queensland Act).
1.20
The Department rejected the notion of any impropriety in Minister
Wallace commencing the statutory declaration process in July 2008 and
Minister Robertson completing the process in April 2009. In response to the
latter Minister's involvement and his statutory compliance, an officer of the
Department gave evidence that:
...the minister had the full briefing information before him.
It had clearly been the subject of extensive work, so the material was in a
final form ready for the minister's consideration after taking up his position,
and during that period of time the minister went through all of the appropriate
material and satisfied himself against those sections of the legislation before
making his recommendation to Governor in Council and it was gazetted.
...
Minister Robertson obviously served in the cabinet that had
considered the wild river declaration proposals. He was very much familiar with
the wild rivers legislative framework and indeed the original proposals for
those declarations, given he was the minister responsible at various times in
an earlier role. He was not, as you would say, a newcomer to that ministry.[12]
1.21
While noting the Queensland Government's reasons for holding the view
that there was no breach of process in the making of the 2009 Declarations,[13]
Coalition senators remain sceptical as to the ability of Minister Robertson to
have properly read, digested and acted on extensive briefing material in what
appears to be three days only.
1.22
In addition, Coalition senators are disappointed with the late receipt
of a submission from the Queensland Government (21 April 2010). This submission
was lodged with the secretariat after both the Canberra and Cairns public
hearings, giving the committee little opportunity to question the Queensland
Government on the veracity of its contents. Coalition senators are disappointed
with, and frustrated by, the Queensland Government's actions in this regard and
interpret those actions as a blatant attempt to frustrate the Senate's
committee process.
Developments subsequent to the
Cairns public hearing
1.23
On or about 8 June 2010, the Cape York Land Council (CYLC), on behalf of
certain traditional land owners in Cape York Peninsula, launched a challenge to
the validity of the 2009 Declarations in the High Court of Australia. Five
grounds for the suit were publicly reported, including:
...[that] the minister did not properly make the declarations
and there was a failure of procedure. Further, even if the declarations were
properly made, they are invalid because they overreach the minister's powers.[14]
1.24
The respondents in the proceedings, the State of Queensland and the
Minister for Natural Resources have two weeks to formally respond to the writs
(whether by way of appearance or other). In the meantime, the minister has been
reported as defending the Queensland Act on the ground that subsection 44(2) of
the Queensland Act explicitly preserves native title rights.[15]
1.25
Coalition senators note that the action encompasses more than one legal
cause of action, which the minister's response, perhaps understandably, does
not address. Coalition senators note that the matter is now before the courts
and await the outcome with interest.
The scope of wild river declarations
1.26
Coalition senators acknowledge that wild river declarations made
pursuant to Division 1 of Part 2 of the Queensland Act affect the economic
aspirations of traditional landowners of native title in wild river areas. This
issue is explored below.
1.27
In answers to a question on notice, Balkanu referred to the Queensland
Government's 2004 pre-election policy as focussing on 'major development activities
such as excessive water extraction, building of dams and in-stream mining'.[16]
It argued, however, that contrary to the 2004 Policy:
The Wild Rivers Queensland Act and Wild River declarations
have gone well beyond the intention of the election commitment to prohibit and over
regulate a wide range of lower level activities such as aquaculture, small
scale commercial horticulture and small scale ecotourism ventures and
indigenous housing.[17]
1.28
Balkanu described a further effect of the change in state government
policy on the traditional land owners of the Cape York Peninsula region:
The [Queensland] Government and the Wilderness Society have
in recent times claimed that the 2004 Election commitment was for the declaration
of thirteen river 'basins' on Cape York rather than the thirteen 'rivers'
identified in the election policy.
...
The declarations of the Stewart, Archer and Lockhart Basins
in April 2009 involved the declaration of thirteen separate wild rivers rather
than three.
...
If the Queensland Government proceeds with its intentions,
the change from thirteen rivers to thirteen basins will result in the declaration
of 80% of Cape York as [a] 'preservation area' under the Wild Rivers Act.[18]
1.29
Coalition senators note information received during the inquiry regarding
the high preservation/preservation areas created by the 2009 Declarations.
These include 'preservation area' classification for 84% of the Archer wild
river area, 80.9% of the Lockhart wild river area, and 82.8% of the Stewart
wild river area. The Department also advised that the balance of the wild river
areas comprises 'high preservation areas'.[19]
1.30
While these percentages could be unique to the Archer, Lockhart and
Stewart wild river areas, there is no actual evidence to suggest that this is
the case: it could equally represent what is occurring in other wild river
areas.
1.31
Coalition senators acknowledge the stated purpose of the Queensland Act to
'preserve the natural values of rivers that have all, or almost all, of their
natural values intact',[20]
and that balancing this environmental interest and that of landowners is an
inherently difficult process. From submissions and evidence received throughout
the inquiry, it is clear that the appropriate balance has not been struck with the
wild rivers regulatory scheme.
Economic opportunities in wild river areas
1.32
Subclause 4(3) of the Bill, which goes to the heart of the proposed
legislation, states:
...
In particular, it is the intention of the Parliament that
[the Bill] protect the rights of traditional owners of native title land within
wild river areas to own, use, develop and control that land.
1.33
In his second reading speech, Senator the Hon. Nigel Scullion emphasised
the importance of this provision, telling Parliament that recognising property
rights is the key to creating and promoting Indigenous economic activity in
Cape York Peninsula:
Land is one of the greatest assets that Cape York and indeed
many Indigenous people have yet they are unable to use this asset as the basis
of economic opportunity for themselves and for future generations. Aboriginal
and Torres Strait Islander people have had their legal rights as our first
Australians recognised through a long process that has delivered land rights
and Native title rights. I am a firm believer that the recognition of rights
over land ownership should be the start of Indigenous involvement in land and
sea based economic activity.[21]
1.34
Use and development of native title land within a wild river area was a
hot topic of the inquiry. The committee received a vast amount of evidence
arguing that the Queensland Act adversely affects economic opportunities in
Cape York Peninsula.[22]
1.35
The Anglican Church (Brisbane Diocese), for example, submitted:
The Wild Rivers legislation negatively impacts the well-being
of the indigenous population within [the Cape York Peninsula] area as it
reduces the ability of Cape York indigenous communities to engage with the real
economy.[23]
1.36
CYI quoted the conclusions of a detailed economic analysis conducted by
ACIL Tasman in 2009 and also noted:
The impact on the Cape York Reform Agenda...is significant...Our
reform agenda which focuses on rebuilding individual responsibility,
reciprocity and incentives, is designed to break widespread passive welfare dependence
and build economic independence. To this end, the Commonwealth governments
allocated $48 million over four years with a complementary commitment from the
Queensland Government, aimed at creating opportunities through small business
opportunities, education and job creation.
Yet the highly restrictive nature of the Wild Rivers Act,
which imposes layers of red tape on communities and individuals seeking to
self-start small-scale enterprises, mocks that progress and significant
investment. They hurtle our reform initiatives backwards.
The most perverse effect of Queensland's Wild Rivers scheme
is that it will make smaller scale environmentally sustainable developments
more difficult, whilst at the same time not prevent large-scale
industrial developments, such as mining.[24]
1.37
Coalition senators note that, at times, the discussion pitted two main viewpoints
against each another: environmental protection and management against
Indigenous property development rights, welfare reform and social equity
issues. However, Coalition senators consider that the two viewpoints are not
disparate and are accommodated by the Bill.
Attracting investment
1.38
The way in which management areas are classified within a wild river
area affects the development of that area, particularly in high preservation
areas. The committee received important evidence of limited investment
opportunities in Cape York Peninsula, which witnesses at the Cairns public
hearing indicated is further complicated by the wild rivers regulatory scheme.
1.39
One representative from Cape York Sustainable Futures told the
committee:
[The Queensland Act] is an impediment to the flow of capital
into these communities; that is a major problem we find. The only capital we
seem to attract is government capital. Indigenous communities and other members
of ours come up with either 70 per cent or 60 per cent before going to the
banks.
...
[P]roperties on the cape have not appreciated because of
other legislation, and this wild rivers legislation is now another layer. I am
referring to the perception of banks and financial institutions. If I were to
go to a bank down here and say, 'I'm from Bamaga' -or Seisia- 'and I want to
build a motel at the airport there,' firstly, there is [Deed of Grant in Trust];
secondly, there is native title involvement; thirdly, there is vegetation that
has to be cleared; and, fourthly, it is going to be under the catchment of the
Jacky Jacky River, which is going to be declared wild rivers, which is another
layer. But those first three layers will probably knock me out.[25]
1.40
A traditional landowner, Mr Peter Kyle, similarly described the difficulty
he would face if he were to apply for a loan from a private financial
institution:
How many people can obtain funding from the bank when their
land is tied up? Our land is tied up. Do you know how long my family and I have
lived down on Silver Plains Homestead for? Five years. And do you know how? My
pension and their little bit of [Commonwealth Development Employment Projects]
money. If I were to go to the bank and ask for a loan, the first thing they
would ask me is, 'What sort of collateral have you got behind you there to
support this?'[26]
1.41
In addition, Coalition senators note that the making of a wild river
declaration can forestall third party investment in a wild river area. Witnesses
attested to such situations at the Cairns public hearing.[27]
More recently, the point has been demonstrated with the making of the Wenlock
Basin Wild River Declaration on 4 June 2010.
1.42
Five days after the making of that declaration, Cape Alumina Limited
announced that it had placed its $1.2 billion Pisolite Hills bauxite mine and
port project in west Cape York Peninsula under review.[28]
A day later, Matilda Zircon announced that it was relinquishing its exploration
tenements and applications in the Cape York Peninsula.[29]
1.43
Coalition senators observe that the Queensland Government has had ample
opportunity to avail itself of evidence similar to that received by the committee
throughout the inquiry. Further, a decision regarding the making of the Wenlock
Basin Wild River Declaration has been delayed from the end of March.[30]
In the circumstances, it is difficult to conceive the rationale for both the
declaration and its timing: in the opinion of Coalition senators, the timing was
highly questionable, demonstrative of poor judgement and evidences an extreme
lack of foresight.
1.44
Coalition senators acknowledge evidence that the difficulty of attracting
investment in the Cape York Peninsula inhibits or prevents economic development
and employment opportunities in the region. The need for such development and
opportunities in remote Indigenous communities is well known and will not be further
explored in this dissenting report.[31]
Development applications lodged to
date
1.45
The ability to use and develop native title land within a wild river
area very much depends on its classification under a wild river declaration and
the proposed activity or taking of natural resources on that land.
1.46
In general, submissions and evidence accepted that the regulatory scheme
creates prohibitions and constraints, with particular concerns focussed on certain
activities in high preservation areas (such as ecotourism, housing and
campground facilities).[32]
1.47
Balkanu, for example, highlighted the adverse impact on Indigenous community
vegetable gardens for people with residences included within the High
Preservation Area either side of a declared wild river:
[A] community vegetable garden within a High Preservation
Area is only permissible if it does not involve clearing of vegetation. It is
difficult to imagine circumstances on Cape York where a community vegetable
garden could be established without some clearing of vegetation.
High Preservation Areas have in almost all declaration been
declared to the maximum of 1km either side of a declared wild river and its
major tributaries – with no scientific justification. The best soils for
community gardens are within this area.[33]
1.48
Coalition senators express concern with this intrusion into native title
land owners' ability to use their land in whatsoever manner they see fit and in
respect of community vegetable gardens, particularly in circumstances where the
proposed use is intended to improve physical and social well-being.
1.49
The Queensland Government submitted that, as at April 2010,
approximately 173 development applications have been made which are affected by
the Queensland Act, including 'applications for environmental authorities,
riverine protection permits, vegetation clearing and mining tenements'.[34]
The Queensland Government further advised that no finalised application has
been refused.[35]
1.50
However, Coalition senators observe that, on the whole, these 173
development applications do not appear to be the types of applications which
native title landowners in wild river areas wish to lodge for development and
use purposes.
1.51
The Queensland Government also submitted:
Some of the developments which are able to proceed include
off-stream 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.[36]
1.52
According to evidence from a departmental officer at the Cairns hearing,
commercial or business opportunities, such as a tourist lodge, are
infrastructure for which a development application would need to be lodged via
the normal channels, that is, the local government authority.[37]
1.53
At the Cairns public hearing, the committee heard that ventures which
would have benefited Indigenous communities, and which were supported by those
communities, have failed to eventuate, or might fail to eventuate, due to the
wild rivers regulatory scheme.[38]
However, Coalition senators note that this is not the same issue as why
traditional owners of native title land in wild river areas do not appear to be
lodging developing applications for that land.
Regulatory complexity
1.54
According to Indigenous submitters and witnesses, the reason for the
lack of development in wild river areas relates not just to the uncertainty
surrounding the wild river regulatory scheme,[39]
but also to the complexity of the development application process.
1.55
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.[40]
1.56
At the public hearing in Cairns, Mr David Yarrow from the CYLC also
suggested:
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.[41]
1.57
Similarly, Mr Murrandoo Yanner of the Carpentaria Land Council
Aboriginal Corporation told the committee:
...if Indigenous people want to start up a little business
within the wild river area, unless you can afford a lawyer and a few different
things, it could be quite complex and scary to some people. Our simple solution
to that is that the government should provide funding and resources to any
traditional owner or owner groups who, with the support of their community,
want to propose a sustainable development on the wild river area and need help
to make a proper application and get through the necessary red tape.[42]
1.58
Coalition senators consider that evidence of high levels of uncertainty
and complexity clearly shows that Indigenous native title land owners in wild
river areas have not been provided with the knowledge and resources they need to
navigate and work within the wild rivers regulatory scheme.
1.59
In addition, Coalition senators note that the issue of use and
development of wild rivers area land is not a short-term matter which can be
viewed solely in terms of empirical data. As Mr Noel Pearson from the Cape York
Institute noted:
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.[43]
Consultation processes employed by the Queensland Government
1.60
Coalition senators note that the Queensland Act sets out a mandatory
consultation process under subsections 11(2) and 11(3). These subsections
provide:
(2) The declaration proposal notice must state-
(a) the proposed wild river area to which the declaration
proposal notice relates; and
(b) where copies of the declaration proposal are available
for inspection and purchase; and
(c) that written submissions may be made by any entity about
the declaration proposal; and
(d) the day by which submissions must be made, and the person
to whom, and the place where, the submissions must be made.
(3) The day stated under subsection (2)(d) must not be
earlier than 20 business days after the day the declaration notice is published.
1.61
Balkanu provided a useful explanation of why this statutory consultation
process disadvantages traditional owners of native title land:
For traditional owners to have their views properly
considered by the Minister, they have two paths. They must raise their issues
in meetings presented by state government officers and have faith that these issues
will be communicated accurately back to the Minister, or alternatively provide
submissions on the declaration proposals. State government officers present set
information but do not enter into discussions with traditional owners to seek
to identify their particular issues and concerns.
Submissions on the other hand are required to be in writing
to be considered 'properly made'. The written submissions must state the
grounds, facts and circumstances relied upon. For many indigenous people
literacy is an issue, English is a second language and they rarely have access
to the materials required to assess, write and submit their views in relation
to wild rivers.
...
To effectively provide submissions there is considerable time
and support required, particularly where there are a large number of dispersed
people. Although the Cape York Land Council and Balkanu were able to provide
support to many traditional owners in preparing submissions on the Archer,
Lockhart and Stewart River Basin proposals, the tragedy was that these
submissions were largely ignored by the Minister. It is noted that [for] the
most part government denied the traditional owners of the Wenlock River the
ability to obtain support to prepare submissions.[44]
1.62
Coalition senators note that state government funding enabled Balkanu to
facilitate the 2009 Declarations consultation process[45]
and, as a result, over 100 meetings were held with stakeholders in the Cape
York Peninsula region.[46]
Coalition senators commend this approach but note that it was not universally adopted
by the Queensland Government and there is contention as to the quality of the
consultation. This was not only in relation to incorporation of feedback from
native title landowners but the lack of ongoing or meaningful consultations.
1.63
Most notably, the documentation obtained by Balkanu under its Freedom of
Information request (referred to in paragraph 1.13 above) reveals that,
in a draft consultation report, the Queensland Government considered informing
the minister:
The government has undertaken extensive consultation with
affected Indigenous communities on Cape York Peninsula and is confident that it
has addressed any concerns the Indigenous communities may have had. It was
noted from the consultation that there is significant support for the intent of
the Wild Rivers program amongst Indigenous communities on Cape York Peninsula.[47]
1.64
An editorial comment from departmental officers challenged this viewpoint,
casting doubts on the credibility of the consultation process:
Ross and I strongly disagree with this paragraph. It is open
to interpretation whether we did consult widely and extensively. What is
consultation to one may not be consultation to another. I am not confident we
have addressed concerns as we wouldn't be going back to Balkanu with the
D[irector]G[eneral] if this were the case. There was not significant support
for wild rivers. It was a mixed viewpoint. Significant in differences.[48]
1.65
The committee heard that some traditional owners of native title land were
not aware of the extent of wild river declarations which directly affected them
until after the making of those declarations. For example, Ms Phyllis
Yunkaporta, a traditional owner of the Apalach Clan Group living in Aurukun
submitted:
I am extremely concerned that large areas of land south of
the Archer River were declared as High Preservation Area without prior
notification to the [Aurukun Shire] Council and traditional owners and without
affording the [Aurukun Shire] Council and traditional owners due process to
make submissions about the proposal.[49]
1.66
The Kokoberrin Tribal Aboriginal Corporation indicated that it was
consulted on behalf of the Kokoberrin of the Inkerman Station (Pinnarinch) area
but this consultation occurred only in the early stages of the making of the
Staaten Wild River Declaration:
In December 2005, a notice of intent to declare the Staaten
Wild River Area was published in newspapers. The notice also advertised the
availability of the Staaten Wild River Declaration Proposal for public comment
and formal submissions. The submission period closed on 24 April 2004.
Throughout 2006, Government undertook negotiations with some
stakeholders, but not traditional owners of the Staaten River, to resolve
issues about the Act and the proposed declarations...
[We] believe the Wild Rivers is a legislative injustice which
has serious implications for the Commonwealth's welfare reform agenda, and its
relationship with all indigenous Australians. It was imposed after only token
consultations – and without negotiations with indigenous people...[50]
1.67
Notably, a representative from Cape York Sustainable Futures gave
evidence 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.[51]
1.68
Coalition senators find such a practice reprehensible and consider that
the traditional owners of native title land in wild river areas are entitled to
good faith and respect in all their dealings with the Queensland Government.
United Nations Declaration on the
Rights of Indigenous People
1.69
As noted by Australians for Native Title and Reconciliation (Qld),
consultation does not equate to consent:
The process of consultation is fundamentally different from
the princip[le] of consent and one does not automatically lead to the other.
Nor is consultation a mandate for final decision making, nor a replacement for
free, prior and informed consent.[52]
1.70
Coalition senators agree with this statement which is supported by
clause 5 of the Bill and Article 19 of the United Nations Declaration on the
Rights of Indigenous Peoples (UN DRIP).
1.71
Article 32 of the UN DRIP, which is also relevant to the inquiry,
provides:
Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands or
territories and other resources.[53]
1.72
Some submitters and witnesses questioned the Queensland Government's
compliance with Articles 19 and 32 of the UN DRIP.[54]
1.73
Mr Greg McIntyre SC, for example, told the committee that the Queensland
Act arguably breaches Article 19 due to 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.[55]
1.74
In relation to the 2009 Declarations, the Cape York Institute submitted:
The Wild River laws contravene both of these articles. Free,
prior and informed consent was not obtained from indigenous Cape York
communities before the imposition of the three Declarations of the Lockhart,
Stewart and Archer Basins in April 2009.
There is in Australian law a well established mechanism for
governments and other parties to obtain the free, prior and informed consent of
indigenous peoples in relation to matters affecting their lands – and that is
Indigenous Land Use Agreements (ILUAs) under the Native Title Act.
The Queensland Government should have negotiated and settled
ILUAs with native titleholders as part of the process of putting in place
environmental protection provisions for rivers.[56]
1.75
Coalition senators note that Articles 19 and 32 of the UN DRIP are not
incorporated into domestic law and the principle of 'free, prior and informed
consent' is therefore not one which Australian governments must take into
account. Coalition senators also note that the NT Act does not explicitly
incorporate such a principle. However, 'free, prior and informed consent' is a
fundamental human rights principle for Indigenous peoples.
Native Title Act 1993 (Cth)
1.76
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').
1.77
Some submitters and witnesses argued that the Queensland Act, or an activity
or use covered by it, is a 'future act' within the meaning of the NT Act.[57]
1.78
Evidence presented to the committee argued that the future act regime
set out in the NT Act is triggered by the making of a wild river declaration. Mr
McIntyre SC, for example, submitted that a wild river 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]...[58]
1.79
Mr Yarrow from the CYLC more broadly expressed the view that the wild
rivers legislation:
...is a future act and it does affect native title...[S]ection
44(2) of the [Queensland Act] is not adequate to protect native title.[59]
1.80
These arguments conclude that, as the procedures set out in Division 3
of Part 2 of the NT Act were not implemented by the Queensland Government
(especially ILUAs under Subdivision D and the right to negotiate under
Subdivision P), the 2009 Declarations (and possibly others) made pursuant to
the Queensland Act are invalid under both the NT Act and section 109 of the
Constitution.
1.81
As indicated above, subsection 44(2) of the Queensland Act is also
considered relevant in this regard. Subsection 44(2) provides that, under the 'other
Acts' involved in the regulatory scheme, a wild river declaration cannot
directly or indirectly limit a person's right to the exercise or enjoyment of
native title.
1.82
The 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 itself, as opposed to any other piece of legislation.[60]
1.83
The CYI similarly rejected that the Queensland Act does not affect
native title. In essence, it argued that native title is not 'restricted to so-called
'traditional' activities, confined to hunting and gathering',[61]
and the economic empowerment of Indigenous peoples depends upon a broader
interpretation and approach to native title:
The exercise of traditional rights and traditional activities
is important but that will never lift our people out of poverty and misery. We
have to be able to undertake land use that generates economic return for the
people who live there. We are not going to be serious about closing the gap as
to Indigenous disadvantage if we have this view that all that Aboriginal people
should be happy with and all that they should be entitled to is to stand on one
leg in the sunset picking berries.[62]
1.84
Coalition senators note the Queensland Government's submission that
under section 44 of the Queensland Act, 'a wild river declaration does not and
cannot affect the exercise or enjoyment of existing native title rights and
interests and therefore is not a future act.'[63]
However, on the evidence before them, Coalition senators do not agree.
1.85
While the prevailing definition of 'native title rights' (traditional activities)
appears to be consistent with the wild rivers regulatory regime, it is arguable
that this definition is too restrictive. If one adopts the view that native
title is a right to exclusive possession, a wild river declaration must
necessarily deprive traditional owners of native title land and their ability
to control, use and develop that land.
Constitutionality of the Bill
1.86
Coalition senators note submissions and evidence which contended that
the Bill meets constitutional criteria so as to be a valid enactment under
section 51(xxvi) (the 'races power') of the Constitution.
1.87
In particular, the Gilbert & Tobin Centre of Public Law examined the
validity of the Bill under section 51(xxvi) by analysing each criterion of the
races power: 'the people of any race'; 'deemed necessary'; and 'special laws'.[64]
At the Canberra public hearing, Professor George Williams, a constitutional law
expert presented his view:
...this bill would be constitutionally valid. I do believe it
would be supported by the race power in the Constitution. It has been carefully
drafted to pick that up and is dealing specifically with the rights of Aboriginal
people in a way that I think would attract validity under that power.[65]
1.88
The Gilbert & Tobin Centre of Public Law also noted:
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 [of the Constitution] 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.[66]
Coalition senators dissenting view
1.89
In view of the information received throughout the inquiry, Coalition
senators strongly support the Bill and its aim of protecting the rights of
traditional owners of native title land within wild river areas to own, use,
develop and control that land with a view to economic and social advancement.
1.90
Two years ago, Prime Minister the Hon. Kevin Rudd in his Apology to
Australia's Indigenous Peoples stated:
For [Australians], symbolism is important but, unless the
great symbolism of reconciliation is accompanied by an even greater substance,
it is little more than a clanging gong. It is not sentiment that makes history;
it is our actions that make history.[67]
1.91
Unfortunately, the Rudd Labor Government has not backed this rhetoric
with action, and the Prime Minister's promise has not been honoured. Events such
as the passage of the 2009 Declarations also work directly against the Apology
and any commitment to Closing the Gap. As noted by the Leader of the
Opposition, the Hon. Tony Abbott MP:
[O]n the same day that the Rudd government subscribed to the
International Declaration on the Rights of Indigenous Peoples, the Bligh
government in Queensland applied the wild rivers legislation to the significant
rivers of Cape York—effectively blocking Aboriginal people from developing
their land in the catchments of the Archer, Stewart and Lockhart rivers in Cape
York.[68]
1.92
In his second reading speech, Senator Scullion identified the purpose of
the Bill as an attempt to rectify this injustice and thereby provide some substance
to the Queensland Government's Indigenous policy:
This bill, the Wild Rivers (Environmental Management) Bill
2010, will restore the economic potential of the Cape York land covered by the
Queensland wild rivers legislation to Cape York Aboriginal people. By
exercising the powers under section 51(xxvi) of the Constitution, this
parliament has the ability to make laws for the people of any race. We as a
parliament should support this bill and pass laws to ensure that the Indigenous
people of Cape York are given back their birthright in respect of their land.[69]
1.93
Coalition senators also note inconsistencies with the Australian
Government's Closing the Gap policy and the promotion of Indigenous economic
and social advancement. Economic development is the key to progress for
Indigenous peoples, yet the Queensland Act curtails the development of native
title land in wild river areas (particularly the Cape York Peninsula region)
through overregulation and the imposition of additional red tape. This appears
to be highly relevant to valuable native title land holdings classified as High
Preservation Areas within a wild river area.
1.94
Coalition senators also note inconsistencies between the Queensland Act
and federal legislation (Native Title Act 1993). In spite of Queensland
Government assertions that the Queensland Act, and the declarations made
thereunder, are not future acts within the ambit of the future acts regime,
Coalition senators consider that it is possible for there to be a full or
partial abrogation of native title rights by the making of a wild river
declaration.
1.95
From evidence received throughout the inquiry, Coalition senators
consider that, in addition to the contradictory federal-state legislation and policy
rationale, the 2009 Declarations are flawed by numerous inconsistencies and breaches
in the making of those declarations by the Queensland Government. Coalition
senators note legal action recently initiated in the High Court of Australia
regarding the legality of the 2009 Declarations. This action further
demonstrates community concern with the operation of the current regime.
1.96
It is additionally noted that each wild river declaration covers a
substantially greater area than was initially envisaged under the wild rivers
regulatory scheme prior to the 2004 state election. The new focus on basins
rather than rivers demonstrates bad faith on the part of the Queensland
Government. This focus continues to be replicated in the consultation processes
employed to date, processes which, on the evidence (including evidence provided
by the relevant department) are selective, non-responsive and sporadic.
1.97
All of these considerations lead Coalition senators to conclude that
application of the Queensland Act is severely restricting the capacity of
Indigenous communities in wild rivers areas to use, develop and control their
land. In particular, wild rivers declarations made under the Queensland Act are
restricting economic and employment opportunities for Cape York communities.
The Bill will ensure that Indigenous communities are properly consulted and
given opportunity to achieve consensus among themselves and to make an informed
decision before consenting to the making of any wild river declaration effecting
their land. This will increase opportunities for Indigenous communities to
engage with the real economy and work towards economic independence, thus
addressing related social issues such as welfare dependence and unemployment,
consistent with the objective of Closing the Gap and giving substance to the
Apology to Australia's Indigenous Peoples. Accordingly, Coalition senators
strongly endorse the Bill and commend it to the Senate.
Recommendation 1
1.98 Coalition senators recommend that the Senate pass the Bill.
Senator Guy Barnett
Deputy Chair |
Senator Stephen Parry |
| |
|
| Senator the Hon. Ron Boswell |
Senator the Hon. Bill Heffernan |
| |
|
| Senator the Hon. Ian Macdonald |
Senator the Hon. Nigel Scullion |
| |
|
Senator Russell Trood
|
|
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