Chapter 3 The Wild Rivers (Environmental Management) Bill 2010
Background
3.1
The Bill was introduced on 15 November 2010 as a Private Member’s Bill by
the Leader of the Opposition, the Hon Tony Abbott MP.
Purpose and overview of the Bill
3.2
The Bill contains six substantive provisions. They are:
- a proposed section 3
which has expanded definitions of ‘Aboriginal land’
and ‘owner’;
- a proposed section 4,
which states:
- the
Commonwealth relies on its legislative powers under section 51(xxvi) of the Constitution,
and any other express or implied legislative Commonwealth power capable of
supporting the enactment of the Bill;
- it is the
Parliament's intention that the Bill be a special measure for the advancement
and protection of Australia's Indigenous people;
- it is the
Parliament's intention 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; and
- should
the enactment of the Bill result in the loss of employment by persons employed
or engaged to assist in the management of a wild river area then the
Commonwealth Government should provide employment to those persons in
accordance with details specified in the regulations.
- a proposed section 5,
which provides that the development or use of native title land in a wild river
area cannot be regulated under the Queensland Act unless the Aboriginal
traditional owners of the land agree in writing;
- a proposed section 6,
which provides that agreement of native title holders under the proposed
section 5 may be obtained by the registration under Sections 24BI, 24CK and/or
24CL of the Native Title Act 1993 which includes a statement to the
effect that the parties agree to an area of land being regulated.
- a proposed section 7,
which provides that a wild river declaration made before the commencement of
the Bill (should it become an Act) will be valid until a fresh declaration is
made with the agreement of the Aboriginal traditional owners of the land or six
months elapse from the commencement of the Bill, whichever is the first; and
- a proposed section 8,
which grants the Governor-General a discretionary power to make regulations for
the purposes of the Bill, including:
- for seeking the agreement of Aboriginal traditional owners under the Bill;
- for
negotiating the terms of the agreement;
- for
giving and evidencing the agreement; and
- for the
continued employment of all existing Aboriginal people and other people in its
implementation.
Analysis of the Bill and its provisions
Overview
3.3
The Bill has a number of problems. Many of the criticisms received
during the inquiry are that the Bill is poorly worded, confusing and unworkable.
Chuulangun Aboriginal Corporation provided a succinct summary:
The Bill makes allowance for declaration of a wild river only
with the consent or ‘agreement’ of ‘owners’. Further, the Bill states: ‘The
development or use of Aboriginal land in a wild river area cannot be regulated
under the relevant Queensland legislation unless the owner agrees in writing.’ There
is no clarity in the Bill about what is meant by the concepts ‘consent’,
‘agreement’ and ‘owner’? Consent and agreement are not properly defined, and
the Bill provides eight different definitions of ‘owner’.[1]
3.4
The Bill is unclear in its intention. Further, it lacks detail as to how
to achieve its underlying intentions. The Queensland Conservation Council
noted:
... the terminology of the Bill is extremely vague and
nebulous and does not really describe well what it is intended to do. ... while
we acknowledge that there are reasons behind this Bill being presented, we do
not necessarily think that it has been overly well crafted or targeted at the
right area to achieve the outcomes that we think it is supposed to be
addressing.[2]
3.5
The Bill’s structure and content also result
in an ‘over-reach’ which would likely result in some form of legal or
constitutional challenge. By stipulating that Indigenous owners must provide
‘consent in writing’, the Bill provides those owners with a veto power that no
other Australians have.[3]
3.6
While the DRIP sets important principles for
the fundamental human rights of Indigenous people, it is not legally binding
and does not have a technical effect on Australian law.
3.7
These points will be expanded upon further in the specific analysis of
the Bill’s clauses below.
Clause 3
Background
3.8
Clause 3 provides definitions for the
Bill’s relevant terms. While some of these definitions are uncontroversial,
others have been questioned – particularly the eight definitions of what
constitutes ‘Aboriginal land’ and that of an ‘owner’.
3.9
The Bill states that it is ‘to protect the interests of Aboriginal
traditional owners in the management, development and use of native title land
situated in wild river areas.’ However, the legislation provides six other categories
of Aboriginal land.[4] For the purposes of the
Bill, ‘Aboriginal land’ means:
- Aboriginal land under the Aboriginal
Land Act 1991 (Qld);
- land where
native title exists;
- a lease under the Aborigines and
Torres Strait Islanders (Land Holding) Act 1985 (Qld);
- deed of grant in
trust land under the Land Act 1994 (Qld) granted for the benefit of
Aboriginal people;
- a reserve under the Land Act 1994
(Qld) for a community purpose that is, or includes, Aboriginal purposes;
- freehold, or a
term or perpetual lease under the Land Act 1994 (Qld), held by, or in
trust for, an Aboriginal person or an Aboriginal corporation under the Corporations
(Aboriginal and Torres Strait Islander) Act 2006 (Cth);
- the Aurukun Shire lease under the Local
Government (Aboriginal Lands) Act 1978 (Qld).
3.10
Similarly, the definitions of ‘owner’
are quite broad. For the purposes of the Bill, ‘owners’ means:
- for Aboriginal
land under the Aboriginal Land Act 1991 (Qld)—the grantees of Aboriginal
land under that Act;
- for land where native
title exists—native title holders under clause 224 of the Native Title Act
1993;
- a lease under the Aborigines and
Torres Strait Islanders (Land Holding) Act 1985 (Qld)—the lessee;
- deed of grant in
trust land under the Land Act 1994 (Qld) granted for the benefit of
Aboriginal people—the grantee;
- a reserve under the Land Act 1994
(Qld) for a community purpose that is, or includes, Aboriginal purposes—the
trustee of the reserve;
- for freehold
held by, or in trust for, an Aboriginal person or an Aboriginal corporation
under the Corporations (Aboriginal and Torres Strait Islander) Act 2006
(Cth)—the registered proprietor under the Land Title Act 1994 (Qld);
- for a term lease or perpetual lease
under the Land Act 1994 (Qld) held by, or in trust for, an Aboriginal
person or an Aboriginal corporation under the Corporations (Aboriginal and
Torres Strait Islander) Act 2006 (Cth)—the lessee;
- the Aurukun
Shire lease under the Local Government (Aboriginal Lands) Act 1978
(Qld)—the Aurukun Shire Council.[5]
Analysis
3.11
The definitions of both ‘Aboriginal land’ and ‘owner’ are so broad as to
cause confusion and possibly bring the Bill into conflict with other
legislation, such as the Commonwealth Native Title Act 1993. With
specific focus on ‘Aboriginal land’, The Queensland Government observed:
The ‘Definitions’ (clause 3) state that Aboriginal land is to
include land where native title exists—under the principles of the Native
Title Act this may include land where native title has not necessarily been
resolved.
If the Bill is intended to extend the rights afforded to native
title holders, a more appropriate mechanism would be amendment to the
Commonwealth’s Native Title Act 1993 (NTA). This Act already
provides the framework and processes to recognise and protect native title
rights and interests—and is within the jurisdiction of the Commonwealth
Government to address. [6]
3.12
The question of native title status of over a particular piece of land
was also raised. As native title is a pre-existing right, native title could
exist over land which is not yet subject to a native title claim or
determination. Adding to this ambiguity is the question over who the relevant
owner or owners of the land are if negotiations need to occur over a potential
wild river declaration. The Inter-Departmental Committee of the Commonwealth
Government (IDC) commented:
Also, through its definition of ‘native title land,’ the Bill
applies to land over which native title exists. Because native title is a
pre-existing right, native title could exist over land which is not yet subject
to a native title claim or determination. There is no compulsion for a claim
to be lodged, so the proposed definition could have the effect of requiring the
agreement of the owner of land over which no claim need ever be lodged, and
over which native title may not exist. Due to this, it is possible that the
Bill could enable Indigenous land owners who have not lodged native title
claims, or do not have a native title determination, to prevent regulation of
land in a Wild River area. This may create practical problems as it may be
difficult to ascertain who the relevant owners of the land are in order to
obtain their written agreement to the development or use of the land as
required by the Bill.[7]
3.13
The definition of owner in particular has been
identified as problematic.[8] The definition’s expansive
nature has the potential to result in ‘overlap’ between different individuals
or groups who may all claim to be the ’owner’ under one or more of the
definitions. This results in confusion as to who does or does not have the
right to provide the required ‘consent’. The Carpentaria Land Council
Aboriginal Corporation (CLCAC) provided a tangible example:
...if the Bill is passed in its current form and there was a
proposal to declare a wild river in the southern Gulf of Carpentaria (and the
proposed transitional provisions also applied), CLCAC would be concerned that
consent may possibly be required from all of the following (in addition to
native title holders/traditional owners) before a declaration could be made:
- The local Aboriginal
Shire Council; and
- grantees of Aboriginal
land under the Aboriginal Land Act 1991; and
- any individual
Aboriginal person who has been given a lease by a Shire Council on [Deed of Grant
in Trust] DOGIT land; and
- the trustee of any
community purpose reserve; and
- any body or person
holding freehold on trust for an Aboriginal person or corporation; etc....[9]
3.14
CLCAC also noted that the Bill, through its diverse definitions of ‘Aboriginal
land’ and ‘owner’, may provide Aboriginal persons other than traditional owners
with a right to veto proposed wild rivers declarations.[10]
3.15
Professor Jon Altman also addressed this question. He considered it a
legitimate concern that the Bill’s definitions resulted in an ambiguous and
contentious list of those required to give consent in writing. Professor Altman
observed:
Many questions arise here: Who has to give consent? All
members of a land owner group by consensus? An elected or self proclaimed
leader of the ‘traditional owners’? The applicants (if it is a native title
claim group) or the prescribed Body Corporate (if it is a determined group)? What
if there are overlapping claim groups?[11]
3.16
There is also the issue of consensus. Should it be found, for example,
that five ‘owners’ are required to consent to a wild river declaration, it is
unclear if the declaration would proceed if only four of the five agreed. The
result may well be that the one dissent may prevent the declaration proceeding
despite the fact that the majority have approved. At the least it is likely to
result in a long and protracted consultation process.
3.17
The combination of these two broad sets of definitions has the potential
to render the existing Wild Rivers Act 2005 (Qld) unworkable and open to litigation.[12]
The Queensland Government stated:
The ‘owner’, as defined, encompasses a wide range of people.
Because of the historical displacement of Indigenous peoples, there will likely
be disputes over who the owners are for different areas. Some Indigenous
people elect others to make decisions on their behalf because they do not want
to sign documents. Others are unable to do so for various reasons: some owners
have moved from their traditional country and live in other parts of Australia.
It may be difficult to identify all the owners, leaving any declaration open to
legal challenge.[13]
3.18
This question of legal challenge is of great importance as such action could
lead to conflict between different communities. CLCAC expressly stated their
concern that if the Bill is passed it will result in conflict between
Aboriginal individuals and groups and between traditional and non-traditional
owners.[14]
3.19
The Bill’s broad definitions have resulted in an unworkable Bill. The
many and varied definitions of ‘Aboriginal land’ and ‘owner’ have resulted in
confusion and their practical application will likely result in long,
protracted and confusing consultation processes. Further, these definitions may
result in different Indigenous communities being in conflict, potentially
resulting in legal action.
3.20
While the Bill’s broad definitions make it unworkable, it is also
important to note that the issue of potential ‘overlap’ between different
‘owners’ was equally of concern in the previous version of the Bill introduced
into the 42nd Parliament. The complex and contested issue of
indentifying the appropriate owner to provide consent is a fundamental issue
with the Bill’s intent, as well as the poor drafting of the current version of
the Bill.
Clause 4
Background
3.21
Clause 4 provides the Bill’s constitutional basis, sets out its intent
and proposes a compensatory claim for any loss of employment currently
undertaken through the provisions of the Queensland Act. It proposes that:
- the Commonwealth
relies on its legislative powers under section 51(xxvi) of the Constitution,
and any other express or implied legislative Commonwealth power capable of
supporting the enactment of the Bill;
- it is the
Parliament's intention that the Bill be a special measure for the advancement
and protection of Australia's Indigenous people;
- it is the
Parliament's intention 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; and
- should the enactment
of the Bill result in the loss of employment by persons employed or engaged to
assist in the management of a wild river area then the Commonwealth Government
should provide employment to those persons in accordance with details specified
in the regulations.
Analysis
3.22
Constitutionally, the Bill raises some serious questions about the
continued validity of the Wild Rivers Act 2005 (Qld). Supporters of the Bill, such as Balkanu and
Cape York Land Council, commented that the Bill did not overturn the Queensland
Act.[15] Considered legal opinion,
however, concludes that the Bill would override the Act.
Professor George Williams citing legal precedent, concluded
that the Bill would override the Queensland Act under section 109 – the laws of
the Commonwealth prevail over the laws of a State to the extent of any
inconsistency – obliging them not to regulate wild river areas that are also
subject to native title without first obtaining agreement from the Aboriginal
traditional owners.[16]
3.23
Enactment of the Bill would therefore override the legislation of the
Queensland Parliament setting a particular precedent. The Queensland Government
observed that the Bill would undermine and remove the democratically elected Queensland
Parliament’s power to regulate the environment in wild river areas without
consent of Indigenous owners: an outcome which it considered to be an intrusion
into the lawful legislative powers of the State. [17]
3.24
Clause 4’s second point – that ‘this Act be a special measure for the
advancement and protection of Australia’s Indigenous people’ – is broad and
ambiguous. The Queensland Government questioned as to how Indigenous peoples’
interests will be protected and advanced ‘nor specify exactly what Indigenous
people are to be protected from, or in what areas advances will be made’.[18]
3.25
Clause 4’s final point – that of compensatory employment for any loss of
jobs due to the Bill’s passing – also attracted comment. The Queensland
Government argued that the Bill’s passing could lead to the collapse of employment
for people managing wild river areas – particularly the Wild Rivers Rangers
program. [19]
Evidence was received that the program was a success and should be continued.[20]
Further, the Bill’s alternative employment provisions are not adequately
explained. The Queensland Government stated:
The Bill addresses this to some extent by stating the
Commonwealth Government should provide employment to those people in accordance
with details specified in the regulations—but with no regulations available for
examination it is unclear whether the employment proposed by the Commonwealth
would amount to fair compensation for the termination of rangers’ current
employment. In particular:
- in the absence of the
regulation, it is not clear over what period the Wild River Rangers will be guaranteed
employment
- it is not clear
whether the terms and conditions of employment will align with those currently
provided to Wild River Rangers, and if the community-based approach will
continue
- no guidance is given
in the Bill about the duties to be performed under Commonwealth employment
- the Wild River Ranger
program has an accompanying training, mentoring and support structure funded by
the Queensland Government. It is not clear whether the Bill also guarantees
this supporting framework.[21]
3.26
The Queensland Government was similarly concerned about the potential revocation
of the existing wild river declarations as it could end the employment of the
current group of thirty-five Wild Rivers Rangers but also the potential employment
of a further sixty-five rangers. The loss of this employment would reduce the
economic opportunities for the Indigenous people the Bill purports to protect.[22]
3.27
The wording of the Bill’s clause 4 will likely result in the overriding
of the Wild Rivers Act 2005 (Qld) and the discontinuance of an effective state
program. The resulting precedent would make the states’ task of enacting
legislation for the purpose of protecting the environment more difficult, and
potentially may result in opening up areas of Cape York and other
environmentally sensitive places in Queensland to damaging exploitation.
Clause 5
Background
3.28
Clause 5 provides that the development or use of native title land in a
wild river area cannot be regulated under the Queensland Act unless the
Aboriginal traditional owners of the land agree in writing.
Analysis
3.29
Clause 5 is the most controversial aspect of this Bill as it provides
for a right of consent not available to any other group in the country.
3.30
Clause 5 provides that the development or use of Aboriginal land in a
Wild River area cannot be regulated under the relevant Queensland legislation
unless the owner agrees in writing. The requirement for consent is already a
difficult one due to the broad definition of ‘owner’ as discussed earlier in
this chapter.[23] The Bill provides for
several categories of owner and arguably creates precedents for other
jurisdictions and in law. The Queensland Government explained:
... the Wild Rivers (Environmental Management) Bill 2010 ...
appears to provide a power of veto for all owners of Aboriginal land
over any wild river declaration. This provides a power beyond any held by any
person for any other act of parliament, including for the regulation of mining,
land-use planning, health or environmental legislation. Such a power is not
one enjoyed by any other citizen in any part of Australia, and its introduction
raises serious implications for both the responsible protection of the
environment and for a state’s rights to make laws to protect the environment—or
other laws, for that matter. If passed it would set a dangerous precedent for
Commonwealth intrusion into lawful state environmental protection, remembering
that this policy has been explicit in the mandate of elected state governments
over three election cycles.[24]
3.31
The Wild Rivers Inter-departmental Committee too expressed its
reservations over this aspect of the Bill. Written consent, they argued, is an
extension of the rights of native title holders beyond what is provided for in
the Native Title Act 1993 and is not applied consistently nation-wide.
The Wild Rivers (Environmental Management) Bill 2010 requires
the written agreement of the owners of the land to the regulation of the
development or use of Aboriginal land in wild rivers areas under the [Wild Rivers Act 2005 (Qld)].
For land involving native title, this is an extension of the rights of native
title holders beyond what is provided for in the Commonwealth Native Title
Act 1993. As noted, the [Wild Rivers Act 2005
(Qld)] does not affect the rights
of native title holders. In contrast, the Commonwealth bill before the
parliament extends the rights of the native title holders. It is also
important for the committee to note that this extension applies only to native
title holders in areas subject to the Wild Rivers Act 2005 (Qld).[25]
3.32
This effective granting of a veto-power purely for a particular group of
people from Queensland sets an unusual and undesirable precedent. The committee
agrees with Professor Jon Altman of the Australian National University who
stated that providing some form of ‘geographic exceptionalism’ – whether it be in
Cape York, Queensland or elsewhere – will not result in satisfactory and
consistent national policy making.[26]
Clauses 6 and 7
Background
3.33
These Clauses are examined together as they deal with gaining the
consent of the ‘owner’, and the mechanisms by which permission is sought from
those owners, particularly with regards to Indigenous Land Use Agreements
(ILUA).
3.34
Clause 6 provides that agreement of ’owner of land where native title
exists’ may be obtained by the registration under Clauses 24BI, 24CK and/or
24CL of the Native Title Act 1993 which includes a statement to the
effect that the parties agree to an area of land being regulated.
3.35
Clause 7 provides that a wild river declaration made before the
commencement of the Bill will be valid until a fresh declaration is made with
the agreement of the Aboriginal traditional owners of the land or six months
elapse from the commencement of the Bill, whichever occurs first.
Analysis
3.36
The six month time-frame for agreement stipulated in the Bill was
considered unworkable, particularly with regard to where ILUAs are involved.[27]
The Chuulangun Aboriginal Corporation observed that this six month time-frame
for agreement clashed with the requirements of the Native Title Act 1993:
The timeframe of six months provided for in the Bill for a
new declaration to be made with the agreement of the owner of the Aboriginal
land is unworkable. If an agreement is not made in six months, the declaration
will lapse. The Bill notes that agreement be made by way of the ILUA process
under the [Native Title Act 1993 ] and the National Native Title
Tribunal states a six month ‘cooling off’ period after an ILUA application is
submitted, so the Wild River declaration proposal would lapse before the
agreement making process ever began.[28]
3.37
The Queensland Government raised essentially the same concern – that the
process by which ILUAs are negotiated and concluded would make further Wild
River declarations impossible if the Bill were passed. In their words:
It appears, by default, the Bill must cause the collapse of a
wild river declaration in those cases where an ILUA is required. As noted
above, the Bill provides only a period of six months to reach agreement with
the owners of Aboriginal land before the existing wild river declaration
collapses (clause 7). Also noted above, the Bill states that where native
title exists, the agreement of an owner may be obtained by a registered body
corporate or an Indigenous Land Use Agreement (ILUA) (clause 6).[29]
3.38
Further, not only does the Native Title Tribunal require a six month
‘cooling-off’ period for the registration of an ILUA, but there is also the
broader consultation and negotiation process which, in the Queensland
Government’s experience, takes between 12 – 18 months.
The National Native Title Tribunal states parties must allow
a minimum of six months simply for the registration of an ILUA:
- ‘A further six months
should be allowed as a minimum once an application to register the ILUA is made
to the Tribunal. The Registrar must notify certain people and organisations of
the application to register the ILUA and in the case of area and alternative
procedure agreements, must also notify the public. Time must also be allowed
for any objections to the registration of the ILUA to be considered.’
It is the experience in Queensland that ILUAs take between 12
and 18 months to negotiate... This means that, even with regulations in place
at the outset, it is virtually impossible, according to the best available
advice, to develop an ILUA, negotiate and draft its terms of reference,
register it, gain consent of native title holders for the ILUA to act on their
behalf, and negotiate and reach agreement over wild river declarations, all in
the six months allowed under the Bill.
Consequently it must be assumed the effect of the Bill is
that declarations will expire, even in areas where there is widespread support.[30]
3.39
Clauses 6 and 7 add a further layer of unworkable stipulations to a Bill
which, through its definitions of ‘Aboriginal land’ and ‘owner’, is already very
difficult to implement. The six-month period for the conclusion of a consultation
process before making a wild rivers declaration is particularly onerous and
unrealistic given the evidence presented to the committee. Further, there is
also the issue of trying to use ILUAs where non-native title holders are
involved. Incorporating those non-native title owners into the ILUA decision-making
process and gaining their written agreement adds a further layer of difficulty.
Conclusions
3.40
Analysis of the Bill’s provisions casts serious doubt on its
effectiveness and workability.
3.41
The Bill’s broad definitions in clause 3 have produced what is likely to
be an unworkable Bill. The many and varied definitions of ‘Aboriginal land’ and
‘owner’ creates a series of permutations for negotiating consent which must be
navigated for wild rivers declarations to proceed. These definitions will
likely result in long and protracted consultation processes. There is also the
possibility that these definitions may result in different Indigenous
communities being in legal conflict.
3.42
Legal analysis provided to the inquiry shows that the Bill’s clause 4
will likely override the Wild Rivers Act 2005 (Qld). This has a number
of undesirable outcomes. Firstly, the resulting precedent would make the
states’ task of enacting legislation for the purpose of protecting the
environment more difficult. Secondly, the overturning of this legislation may potentially
result in opening up areas of Cape York and other environmentally sensitive
places in Queensland to damaging exploitation. Finally, the successful Wild
River Rangers program may be put in jeopardy by the Bill despite its stated
intention of providing compensatory employment.
3.43
Clause 5 stipulation that consent must be granted in writing has a
particularly unique impact. This effective granting of a veto-power purely for
a singular group of people from Queensland sets an unusual and undesirable
precedent. To grant one group of people a particular set of rights above
everyone else, however well intended, is detrimental to good policy.
3.44
Clauses 6 and 7 add a further layer of unworkable stipulations to a Bill
which, through its definitions of ‘Aboriginal land’ and ‘owner’, is already
very difficult to implement. The six-month period for the conclusion of a
consultation process before a wild rivers declaration is particularly onerous
and unrealistic. Experts in this field state that such a process, if conducted
properly, is likely to take at least twelve months.
3.45
The Bill as a whole is ambiguous in its intent, poorly drafted,
inconsistent with other legislation, and produces a number of undesirable
outcomes none of which guarantee that the Indigenous people of Queensland will
achieve better economic, social, environmental or cultural outcomes. Ultimately,
an Act of the Commonwealth Parliament to overturn state legislation will not
fundamentally address the barriers to economic development in Cape York or the
concerns of stakeholders.
3.46
The Bill is flawed and should not be passed into law.
Recommendation 11 |
| |
That the House of Representatives not pass the Wild Rivers
(Environmental Management) Bill 2010. |
Mr Craig Thomson MP
Chair
4 May 2011