DISSENTING REPORT BY COALITION SENATORS

1.1        The Queensland Government's wild rivers legislation has been controversial from the outset and has inspired a range of opinions on the impact the legislation might have on traditional owners of native title land in wild river areas. The issues examined by the committee in its 2010 inquiry dominated once again during the course of the current inquiry into the Wild Rivers (Environmental Management) Bill 2011 (the Bill), and coalition senators are disappointed that even after three parliamentary inquiries and 12 public hearings into this Bill, the government continues to resist the important measures the Bill would implement.

1.2        This dissenting report addresses the following areas:

• the 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.

The Queensland Government's breach of statutory processes in 2009

1.3        Coalition senators retain their concerns about how the Archer, Lockhart and Stewart wild river declarations were made in 2009, and refer to submissions made to this effect during the course of the 2010 inquiry.[1] Coalition senators expressed these concerns in their 2010 dissenting report and raise them again now.

1.4        Coalition senators' first concern relates to the timing of the wild river declarations. Evidence suggests that the minister who sought to declare the wild rivers was not the same minister that considered the declarations, as is legally required.

1.5        The process the Minister for Natural Resources, Mines and Energy (the Minister) must follow in making a wild river declaration is clearly set out in subsections 13(1), 13(3), 15(1) and 16(1)-(2) of Part 2 of the Wild Rivers Act 2005 (the Queensland Act), and does not leave room for ambiguity. The Queensland Act clearly stipulates that one person must both consider and approve the declarations.

1.6        The requirements for making declarations, as set out by the Queensland Act, appear not to have been adhered to in 2009, as the declarations for  the Archer, Lockhart and Stewart areas were made only days after  the Hon. Stephen Robertson MP was sworn in as the Minister for Natural Resources, Mines and Energy following a state election. During the course of the committee's 2010 inquiry coalition senators came to the view that more than one person was likely involved in the statutory process of making the 2009 Declarations.

1.7        Submissions at the time highlighted the fact that the Minister who approves declarations under section 15 of the Queensland Act must be the same person who has considered the matters as required under section 13 of the same Act. However, as pointed out by the Cape York Institute (CYI):

...the Archer, Lockhart and Stewart [wild river] 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]

1.8        Information received suggested that the Minister did not in fact consider the declarations—as required under section 13 of the Queensland Act—until he was given a ministerial briefing note (CTS 02637/09) on the very day the declaration documents were finalised for approval by the Governor-in-Council.

1.9        Internal communications indicate that the Queensland Department of Environment and Resource Management (the Department) was aware that the new minister had not seen the relevant ministerial briefing note, and that in fact the previous minister, the Hon. Craig Wallace MP, had seen the draft declarations instead. The first such piece of information forwarded to the committee was from 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]

1.10      At the time, the Department sought to explain this email and its timing as being part of an administrative process:

[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]

1.11      However, another email from 30 March 2009 (4:57pm) exists and was also brought to the committee's attention. It read:

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]

1.12      Taken together, these emails imply a deviation from requirements set out in the Queensland Act.

1.13      Another concern held by coalition senators relates to uncertainty about the instrument through which the declarations were made.

1.14      These concerns arose in relation to the ministerial briefing note (CTS 02637/09) in question, which was provided for the Minister on the day the declarations were finalised for approval by the Governor in Council.

1.15      In 2010 Balkanu Cape York Development Corporation (Balkanu) submitted that information obtained under a Freedom of Information request cast doubt on the existence of any document by which Minister Robertson made the wild river declarations in 2009. Balkanu at the time concluded 'that such an instrument does not exist'.[6]

1.16      At a hearing on 13 April 2010, Senator Barnett asked the Department what instrument the Minister used to make the wild rivers declaration in 2009. The Department's response was that the declaration was made by the Governor-in-Council on the recommendation of Minister Robertson.[7]

1.17      Coalition senators have throughout the course of this and previous inquiries sought to understand how exactly the Minister declared the wild river areas in question.

1.18      Addressing this point again at a public hearing held on 27 April 2011, the Department stated that the abovementioned ministerial briefing note, CTS 02637/09, was the decision making-tool. In response to questions from Senator Barnett, Ms Debbie Best, Deputy Director-General of the Queensland Department of Environmental and Resource Management, told the committee that the draft declaration was attached to the CTS 02637/09 document signed by the Minister in the following exchange:

Senator BARNETT—Is this ministerial briefing note, 0263709, a briefing note or is it a declaration pursuant to clauses 15 and 16 of the Wild Rivers Act 2005?

Ms Best—It is a decision-making tool to declare the declaration or to make the declaration. Once the minister decides to make the declaration, the declaration is attached to the briefing note.

Senator BARNETT—Was it attached to the briefing note?

Ms Best—Yes, it was attached to the briefing note.[8]

1.19      However, when asked to provide the committee with all the documents which were attached to the briefing note as part of a question on notice from Senator Barnett, a different story emerged. The response lists a discussion paper, a table of issues raised during consultations, a media release, and a question and answer sheet, but does not list the wild river declaration itself.[9]

1.20      Coalition senators find this inconsistency unsatisfactory, and are concerned that growing evidence casts further doubt on how the wild river declarations were made. At a hearing in April 2011 Balkanu told the committee:

At the last Senate inquiry, after many months of seeking a copy of the instrument by which the minister made the declaration of the wild rivers on Cape York, we wrote to the Premier, the minister and the governor requesting a copy of the instrument by which the minister made the declarations. We also sought that through FOI. It should be on the public record. Ultimately, this committee requested a copy of the instrument and a briefing note was provided to the committee, which the minister claims to have signed on 1 April, that this is the instrument by which the wild river declarations were made under section 15 of the Wild Rivers Act...

...Since that time, in the parliamentary inquiry, while in the Senate inquiry the minister said that he signed this document on 1 April, in response to questions on notice to the parliamentary inquiry the Queensland government has said that the minister’s office signed this document on 1 April. So to this inquiry Minister Robertson said he signed the document; to the parliamentary inquiry the Queensland government has said that the minister’s office signed that document. We have also obtained under freedom of information a copy of the tracking document that runs with this briefing note. There is no record of this briefing note having gone to the minister’s office on 1 April or returned from the minister’s office signed on either 1 or 2 April. The first reference to a signed hard copy of this document is on 6 April.[10]

1.21      Therefore, Coalition senators are unable to determine conclusively whether the draft wild river declarations were even attached to CTS 02637/09 when the Minister allegedly signed the note on 1 April 2009. Coalition senators therefore ask how the Minister could have approved a decision the pertinent facts for which he was not in full possession of before the declarations went to the Governor in Council, and conclude that the Minister could only have declared the wild rivers through another document, if indeed he made the declaration.[11]

1.22      If this is the case, the requirements of the Queensland Act were not met. The Act unambiguously sets out a two-stage process. First, the Minister is required to declare the wild rivers under sections 7 and 15 of the Act. Second, the Governor in Council is required to approve the declarations on the Minister's recommendation. Coalition senators hold that a briefing note signed by the Minister without draft declarations attached, would be insufficient. Coalition senators take the view that the briefing note constituted only a recommendation, and that a valid process would require that draft declarations be considered at the same time. Following on from this, Coalition senators are of the view that the documents approved by the Governor in Council were not declarations, and as such did not fulfil the requirements of the Queensland Act.

1.23      Interestingly, the declaration process set out in section 1.3 of the Consultation Reports makes no reference to the Minister declaring the wild rivers as part of the process, nor the Governor in General approval. The question arises whether this was an intentional omission as the Minister did not actually declare the wild rivers.

1.24      Coalition senators surmised in 2010, and do so again now, that late on 30 March 2009 the Minister was still unaware that he would be required to make a decision on the Wild Rivers Declarations two days later, and therefore conclude that the Minister had not sufficiently considered the matters as required under section 13 of the Queensland Act.

The scope of wild river declarations

1.25      The stated purpose of the Queensland Act is to 'preserve the natural values of rivers that have all, or almost all, of their natural values intact.'[12] Coalition senators have throughout this and the 2010 inquiries acknowledged the difficulty in balancing this environmental interest with that of landowners. Evidence shows, however, that the appropriate balance between the two has as yet not been struck by the wild rivers regulatory scheme.

1.26      Traditional owners of native title in wild river areas have legitimate economic aspirations like any other Australians. Balkanu informed the committee that the Wild Rivers Queensland Act goes beyond the Queensland Government's stated policy of 'focussing on major development activities such as excessive water extraction, building of dams and in-stream mining.'[13]

1.27      Furthermore, the committee heard during the 2010 inquiry that the 2010 Bill would not actually overturn the Queensland Act, but merely override those regulatory provisions which apply to Aboriginal land unless an agreement is reached with the Indigenous owners of the land:

The bill does not remove environmental regulation. If a wild river declaration does not apply, all the rest of the environmental regulation continues to apply. There is a large amount of environmental regulation that continues to apply. In fact, any attempts at dams or mines in the areas near all the rivers down the east coast of Cape York that flow into the Great Barrier Reef Marine Park would make the Commonwealth Environment Protection and Biodiversity Conservation Act kick in. If wild river declarations are not agreed to, there is already a large range of regulatory provisions that actually apply.[14]

1.28      However, remains the case with the 2011 iteration. Ms  Best, argued that:

The effect of this bill would be to undermine and remove the Queensland Parliament’s power to protect and regulate the environment in areas declared as wild rivers areas unless the consent of the Aboriginal owners of the land is obtained.[15]

1.29      Coalition senators do not agree with this view. Environmental restrictions would clearly continue to apply even if the Bill were passed and Indigenous Australians in affected areas not—almost by definition—denied the basic right of economic development of their land.

Economic opportunities in wild river areas

1.30      At the heart of the proposed legislation is the protection of the right of traditional owners of native title land within wild river areas to develop that land for their economic empowerment.

1.31      In his second reading speeches, Senator the Hon. Nigel Scullion emphasised the importance of recognising property rights:

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.[16]

1.32      The Cape York Institute  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.[17]

Financial and investment impacts of the Queensland Act

1.33      The classification of management areas within wild river areas has a significant impact on their development, particularly in high preservation areas. This means that the Queensland Act has a direct effect on the economic development of communities in wild river areas. Cape York Sustainable Futures advised the committee that:

[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.[18]

1.34      This is a multi-dimensional effect which involves everyone from the private citizen to the community at large. For example, individual landowners face difficulties when applying for loans from private financial institutions:

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?'[19]

1.35      In a broader sense, witnesses also indicated that wild river declarations have an adverse effect on third party investment.[20]

1.36      This was demonstrated with the making of the Wenlock Basin Wild River Declaration on 4 June 2010, which five days later led Cape Alumina Ltd to announce it would be reviewing its $1.2 billion Pisolite Hills bauxite mine and port project in west Cape York Peninsula.[21] The next day, Matilda Zircon announced it was relinquishing its exploration tenements and applications in the Cape York Peninsula.[22]

1.37      Coalition senators are sympathetic to difficulties communities face in attracting investment in areas affected by wild river declarations, which they consider stand directly in the way of much-needed economic development for people in regions such as the Cape York Peninsula.[23]

Development applications

1.38      The ease and possibility of using and developing native title land in a wild river area depends on the area's classification under a wild river declaration and the proposed development activity.

1.39      Submissions on the 2010 Bill for the most part accepted that the current regulatory scheme in place in Queensland creates prohibitions and constraints, particularly on certain activities in high preservation areas (such as ecotourism, housing and campground facilities).[24]

1.40      Balkanu, for example, raised the matter of 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.[25]

1.41      The committee repeatedly heard that development applications are possible, and that over 100 do in fact exist. Coalition senators, however, once again observe that reference to applications which do exist is somewhat misleading. Balkanu advised:

If you look at those applications they are mainly from mining companies. That figure of 100 is incorrect. A lot of those applications are duplications. A lot of them are environmental authorities that relate to exploration permits for mining, so the environmental authority and the exploration permit are regarded as two development approvals for the one development. Those 100 development applications included nine development approvals for one fence; one fence through the KULLA Land Trust are required nine development approvals, and it was only approved because the government claimed that it was for weed control. So the development figures you are stating are inaccurate, and that has been taken up with the Premier.[26]

1.42      Coalition senators also note that the financially burdensome nature of the application process is such that many Aboriginal people are in practice prevented from applying. The Cape York Land Council told the committee that:

It is not about Aboriginal people standing up with a spear with one leg crooked on a knee. We have young Indigenous families who want to improve their lot, who want to establish something on their country. Tourism is a big industry, a major industry. But, if you live in Lockhart River, who is going to help you to write a submission for a development proposal on the banks of the Claudie River or the Lockhart River when you need an environmental scientist to do some studies for you and a lawyer to help you with the application and you do not have money? You tell me.[27]

1.43      Coalition senators have not heard any new evidence suggesting that the application process is easily accessible to Indigenous people, and for this reason have to conclude that overregulation and excessive red tape are yet another impediment to the economic development of individuals and communities in wild river areas.

Regulatory complexity

1.44      The development application process in wild river areas is complex, and this complexity, together with the uncertainty surrounding the wild river regulatory scheme,[28] holds back development. What development does exist fails to translate into meaningful employment and economic outcomes for Indigenous people.

1.45      According to the Cape York Land Council:

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.[29]

1.46      Mr Murrandoo Yanner of the Carpentaria Land Council Aboriginal Corporation told the committee in 2010 that:

...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.[30]

1.47      It appears increasingly evident to Coalition senators that Indigenous 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, and that they will continue to find this an encumbrance.

1.48      Coalition senators reiterate their view 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 noted by Mr Noel Pearson of the Cape York Institute in 2010:

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.[31]

Consultation processes employed by the Queensland Government

1.49      Coalition senators' 2010 dissenting report dealt with aspects of the consultation process applied by the Queensland Government.

1.50      It is necessary to once again state 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.

1.51      In 2010, Balkanu explained 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.[32]

1.52      Coalition senators at the time noted that state government funding enabled Balkanu to facilitate the 2009 Declarations consultation process[33] and, as a result, over 100 meetings were held with stakeholders in the Cape York Peninsula region.[34] This approach was not universally adopted by the Queensland Government and questions remain concerning the quality of the consultation.

1.53      Departmental officers who gave evidence in 2010 called into question the view that the Queensland Government consulted widely prior to introducing its legislation:

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.[35]

1.54      The committee also 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 in 2010:

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.[36]

1.55      The Kokoberrin Tribal Aboriginal Corporation further indicated that it was consulted 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...[37]

1.56      Notably, a representative from Cape York Sustainable Futures gave evidence at the time explaining 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.[38]

1.57      At the committee's public hearing, Mr Richard Ahmat of the Cape York Land Council informed the committee that the proportion of traditional owners on Cape York who do not support the wild rivers legislation could be as high as 85 per cent.[39] Coalition senators observe that if that proportion of traditional owners oppose the wild rivers legislation, it is even more important to make the distinction between consultation and consent.

1.58      Coalition senators also note Mr Ahmat's other observation in this context that:

Not one Indigenous community or representative body was asked to consent to the declarations, which were rolled out just days after Labor won a tight March 2009 state election on the back of Green preferences.[40]

1.59      Coalition senators now reiterate the view expressed in 2010 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, and that consultation should include ongoing negotiation.

United Nations Declaration on the Rights of Indigenous People

1.60      Coalition senators reject the notion that holding consultations automatically equates to obtaining consent. As noted by Australians for Native Title and Reconciliation (Qld):

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.[41]

1.61      This statement is supported by clause 5 of the Bill and Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP).

1.62      Article 32 of the UN DRIP stipulates that:

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.[42]

1.63      Throughout the course of inquiries into the Bills, questions were raised about the Queensland Government's compliance with Articles 19 and 32 of the UN DRIP.[43]

1.64      Mr Greg McIntyre SC, for example, told the committee in 2010 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.[44]

1.65      The Cape York Institute submitted:

The Wild River laws contravene both of these articles [19 and 32 of the UN DRIP]. 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.[45]

1.66      At a public hearing on 27 April 2011, the committee heard that the Queensland government had in fact abandoned longstanding consultation practices:

The Wilderness Society will follow me in giving evidence today and they will say that the state consulted with Indigenous communities before imposing the legislation. Interestingly, they always speak on behalf of the government. They are partners in the wild rivers injustice. They should hang their heads in shame. They know and the state knows that they walked away from 20 years of achieving conservation outcomes by agreement. Two decades of working with government, conservationists, miners, pastoralists and other stakeholders was shredded by these two parties when they decided to unilaterally impose a wild rivers regime. Not one Indigenous community or representative body was asked to consent to the declarations, which were rolled out just days after Labor won a tight March 2009 state election on the back of Green preferences.[46]

1.67      Coalition senators again acknowledge 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. Neither does the Native Title Act explicitly incorporate such a principle. However, Coalition senators again note that 'free, prior and informed consent' is a fundamental human rights principle for Indigenous peoples.

Native Title Act 1993 (Cth)

1.68      As noted in 2010, Division 3 of Part 2 of the Native Title Act (NT Act) establishes a procedural framework for 'future acts', that is, acts which would affect native title. The procedural framework allows such acts to be passed subject to consideration of native title rights and interests. This consideration is a prerequisite for the validity of the future act.

1.69      The committee is aware of evidence indicating that the 2009 Declarations are invalid under the Native Title Act and section 109 of the Constitution because the abovementioned procedures set out in Part 2 of the NT Act were not implemented when the Queensland Act, a 'future act', was introduced.[47]

1.70      Evidence presented to the committee in 2010 suggests that the future act regime as set out in the NT Act is triggered when a wild river declaration is made. At the time, Mr McIntyre SC 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]...[48]

1.71      This view was echoed by others. The Cape York Institute, notably, contended that native title was not restricted to 'so-called 'traditional' activities, and that a broader interpretation of native title was required in order to pursue the economic empowerment of Indigenous people:

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.[49]

1.72      Coalition Senators note the Queensland Government's previously stated view that '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.'[50] On the weight of evidence heard at the latest and previous public hearings on this Bill, Coalition senators still believe the Queensland Government's position to be contradicted by the facts.

Constitutionality of the Bill

1.73      Coalition senators once again note that the Bill meets constitutional criteria so as to be a valid enactment under section 51(xxvi) (the 'races power') of the Constitution.

1.74      Insofar as any inconsistency with the Queensland Act is concerned, Coalition senators note the view expressed by Professor George Williams:

Under s 109 of the Constitution, the laws of the Commonwealth prevail over the laws of a State to the extent of any inconsistency. The [Queensland Act] empowers the relevant Minister to make a wild river declaration in order to preserve the 'natural values' of that area. Consequently, future development and other activities must meet certain conditions before they will be authorised.

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. [51]

Coalition senators dissenting view

1.75      In view of the information received throughout the inquiry, Coalition senators continue to 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.

1.76      Coalition senators retain previously voiced concerns about the breach in statutory process the Queensland Government made in 2009 with the wild river declarations, and are disappointed by the continuing lack of transparency from the state government on this issue.

1.77      Furthermore, Coalition senators view the Queensland Government's wild rivers legislation as nothing short of an attack on the legitimate economic aspirations of Indigenous people and the development of the Cape York region. The Queensland Act is designed to suffocate proposals for economic development and, if allowed to continue unchecked by the Commonwealth, will further embed the cycle of dependence at the expense of individual and community empowerment.

1.78      Coalition senators would in particular like to thank the many submitters and witnesses who invested considerable time and money to get their voices heard over the course of three parliamentary inquiries and 12 hearings. We note the statement from Mr Richard Ahmat, Chairman of the Cape York Land Council:

The poor Indigenous people of Cape York have struggled financially to make their voices heard against the weight of this expensive machine and the herculean efforts of the state of Queensland and vested interest groups to discredit us.

Cape York traditional owners have sat in good faith before all these inquiries in the hope that Australian democracy will serve them and that their voices will be heard. I trust that the obvious conclusion that the inquiries were cynically established to stymie us in our pursuit of justice, to bleed us dry financially, to exhaust us into submission is unfounded and that committee members will vote on the overwhelming evidence before them that our rights have been taken from us.[52]

1.79      Native title lands must be seen as a vehicle through which Indigenous Australians can pursue development opportunities and their legitimate economic aspirations. This is not to in any way underestimate the importance of protecting Australia's natural environment. But environmental protection and the right to economic development are not mutually exclusive.

1.80      Two years ago, then 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.[53]

1.81      Coalition senators once again note the inconsistencies in the Australian Government's 'Closing the Gap' policy and the promotion of Indigenous economic and social advancement, and continue to call for this rhetoric to be backed by real action to close the gap and empower Indigenous Australians in remote areas to be the masters of their own destiny.

1.82      Restoring the right to economic aspiration to the Indigenous people of the Cape York land affected by the Queensland Act is within this Parliament's grasp.

Recommendation 1

1.83      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. Ian Macdonald
Senator the Hon. Nigel Scullion	Senator Russell Trood
Senator Sue Boyce	Senator Barnaby Joyce

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