The Bill has the stated purpose of protecting the interests of
Aboriginal people in the management, development and use of native title land
in areas declared as a wild river area under the Wild Rivers Act (Qld)
The committee has received a significant number of submissions during
this and previous inquiries in relation to the Queensland Act, and wild river
declarations made under that Act. In general terms, the submissions fall into
two distinct groups: those who support the Queensland Act and therefore oppose
the Bill, and those who oppose the Queensland Act and support the Bill.
The terms of reference for this inquiry are narrow. The committee is
limited to considering the provisions of the Bill, and further limited to
consider only those provisions not already considered in its inquiry and report
into the Wild Rivers (Environmental Management) Bill 2010 [No.2] (the 2010
Consequently, this report considers matters related to the Bill not
previously considered by the committee. In this chapter the committee will:
provide an overview of the 2010 inquiry; and
examine the differences between the 2010 Bill and the Bill before
the committee, specifically changes to types of land covered by the Bill,
obtaining written consent for land to be regulated, and the requirement that
the Commonwealth maintain employment of persons employed under the Queensland
Matters considered in the 2010 Inquiry
In this section the committee will briefly outline the matters
considered in detail by in the 2010 Inquiry.
The Legal and Constitutional Affairs Legislation Committee held hearings
in Cairns and Canberra and received 38 submissions. The focal issues of the
the Native Title Act (Cth) (NT Act);
the United Nations Declaration on the Rights of Indigenous
Peoples (UN DRIP);
the consultation process adopted by the Queensland government;
drafting issues, especially clauses 5 and 7 of the 2010 Bill;
economic opportunities in wild river areas; and
constitutionality of the Bill.
Consistent with the Senate's resolution referring the Bill for inquiry,
owing to these matters having been dealt with by the committee previously, they
will be summarised here for the purposes of background, but not addressed
substantively as part of the committee's current inquiry.
Native Title Act 1993 (Cth)
The committee considered submissions in relation to the operation of the
NT Act and the Queensland Act. In particular, the committee examined
whether the Queensland Act, and subsequent activities under it, are future acts
for the purposes of the NT Act. This is an important question because the NT
Act establishes a procedural framework for the process to be followed where a
future act affects native title. The committee received a large number of submissions
on this point from differing perspectives.
Having reviewed all the relevant material, the committee was unable
conclusively determine whether or not a wild river declaration is a future act,
within the meaning of the NT Act.
The committee noted that the definition of native title rights and the
apparent preservation of native title rights in wild river areas under the
Queensland Act, suggested that native title rights are not compulsorily
acquired when a wild river declaration is made.
United Nations Declaration on the
Rights of Indigenous Peoples
The committee considered a number of submissions on the significance of
Article 19 of the UN DRIP. Article 19 provides that governments must consult
with indigenous people to obtain 'free, prior and informed consent' before
adopting legislative or administrative measures that affect them.
The committee noted that Article 19 has not been incorporated into domestic law,
and that consequently federal, state and local governments are not bound to
implement the principle in their legislation.
The consultation process adopted by
the Queensland government
The committee received many submissions in relation to the consultation
process followed by the Queensland government in relation to the Queensland Act
and wild river declarations under that Act. Some submissions raised concern
about the quality of the consultation process while other submitters reported
their satisfaction with it. The committee commended the Queensland government
on the work it had already achieved in improving the consultation process, and
encouraged it to continue to seek ways to improve the consultation process.
The committee gave particular attention to clauses 5 and 7 of the 2010 Bill.
Clause 5 provided that the development or use of native title land in a
wild river area could not be regulated under the Queensland Act unless the
Aboriginal traditional owners of the land agree.
The stated intention of this provision was generally supported by
submitters and witnesses. However, concerns were raised about the vague
requirement of 'agreement' and the term 'traditional owners' (which is not
defined in the Bill or the NT Act).
Clause 7 would have granted the Governor-General a discretionary power
to make regulations for the purpose of the Bill. This included: for seeking the
agreement of Aboriginal traditional owners under the Bill, negotiating the
terms of the agreement and for giving and evidencing agreement.
Submitters raised questions about the breadth of the Governor General's
powers. Specifically, Clause 7 contained too little detail about the meaning of
the phrase 'agreement of traditional owners'. Another submitter observed that
in the absence of any draft regulations, it was not possible to determine whether
the consultation processes proposed by the Bill would be an improvement on
those already in place under the Queensland Act.
Economic opportunities in wild
The committee received supportive submissions about the positive
contribution the wild river ranger programs were making in wild river areas. For
example, the wild river ranger programs, established under the Queensland Act,
provide job opportunities and assist Indigenous owners to effectively manage
land in wild river areas.
The committee received conflicting submissions about other economic
impacts that the Queensland Act has on Indigenous communities. Some evidence
indicated that no development proposals had been refused, yet other submissions
stated that as a result of a wild river declaration economic development was
prohibited. The committee noted that there was confusion amongst some
submitters as to how the Queensland Act operates.
The committee also received submissions arguing that while the
regulatory regime to which wild river areas are currently subject does not
prevent economic development, it does create further obstacles for Indigenous
communities because of regulatory complexity.
Constitutionality of the Bill
The 2010 Bill states that it relies upon the Commonwealth's legislative
powers under paragraph 51(xxvi) of the Constitution. Section 51 relevantly
The Parliament shall, subject to this Constitution, have
power to make laws for the peace, order and good government of the Commonwealth
with respect to:
(xxvi) the people of any race for whom it is deemed necessary
to make special laws.
The committee received two submissions that indicated it was likely the
Commonwealth has the power to enact the Bill. If the Bill were enacted, a
further issue is whether it is inconsistent in whole or part with the
Queensland Act. If this is the case, then section 109 of the Constitution may
apply, meaning that the Queensland Act may be inoperative to the extent of
The Committee view for the 2010
Following its extensive inquiry, the committee concluded that:
While there might be a need for further information and
assistance with development applications, the committee is not persuaded that
the Queensland Act substantially interferes with the current or future
development aspirations of Indigenous or other landowners in wild river areas.
Even if it did, the committee does not consider that the Bill provides the
comprehensive and considered solution needed to economically and socially
empower Indigenous communities in wild river areas.
The committee recommended that the Senate not pass the Bill.
Matters considered in this inquiry
In this section, the committee considers a number of provisions that were
not considered in the 2010 Inquiry. While many of the issues raised during the
former inquiry were raised again this time, the committee is mindful of the
terms of its reference from the Senate. Consequently matters considered during
this inquiry include:
definitions, and in particular changes to types of land covered
by the Bill;
provision of an employment guarantee to those whose jobs are lost
due to the operation of the Bill;
continuing concerns about the meaning of the term 'agreement',
noting that new provisions for obtaining agreement for land to be subject to
the Queensland Act appear in the 2011 Bill; and
Definitions of ownership and
categories of land
The Queensland Government was critical of the lack of effective
definition provided for key terms, arguing that:
The Bill states in clause 4(3)(a) that it aims to 'protect
the rights of traditional owners of Aboriginal land...'. The Bill does not
define the word 'right' nor provide any framework for determining these
'rights', but it appears to offer protection beyond what is understood as
native title rights or even traditional rights.
The Inter-departmental Committee on Wild Rivers (IDCWR) had this to say
about the Bill:
There are a number of uncertainties about the potential scope
and application of the Bill. One of these relates to the term ‘owner.’ The Bill
is not clear as to whether the agreement of all persons who are ‘owners’ of the
land in question is required. For example, it might be possible that native
title exists over land which is also subject to the grant of Aboriginal freehold
under the Aboriginal Land Act 1991 (Qld). In this situation, it would assist
for the Bill to make it clear whether both ‘owners’ of the Aboriginal land,
namely the native title holder (through the prescribed body corporate) and the
trustee (through the land trust), would need to agree to the proposed
The IDCWR went on to submit that:
In addition, in some situations, the ‘owners’ of the
Aboriginal land may be composed of different people. While there may be some
overlap, members of the native title holding group may not always correspond to
beneficiaries of the Aboriginal freehold. This is because under the Aboriginal
Land Act 1991, land can be transferred to Aboriginal people who have a
historical association to the land and not necessarily a traditional affiliation.
This can result in two land holding entities for the one parcel of land. The
Australian Government is aware of at least one circumstance where the
prescribed body corporate and the land trust were at odds over how Aboriginal
freehold land subject to a native title determination was to be managed.
The Carpentaria Land Council Aboriginal Corporation (CLCAC) took a
similarly dim view of the drafting, and expressed alarm at the prospect of
having to obtain consent from multiple 'owners' for a wild rivers declaration
under the Queensland Act. The CLCAC submitted that:
By relying on the definitions of 'Aboriginal land' and 'owner',
section 5 may provide Aboriginal persons other than traditional owners with a
right to veto a proposed Wild Rivers declaration. Section 5, it is submitted,
could operate to provide all of the Aboriginal persons and/or corporations
listed from (a) to (h) under the definition of 'owners' with that right,
requiring their agreement in writing to a declaration.
The Wilderness Society also took the view that the Bill contained
significant definitional deficiencies, and argued in respect of the definition
of 'owner' that:
The Bill conflates Traditional Ownership with every
conceivable Aboriginal tenure or interest in land, interests which are not at
their core Traditional Ownership or Native Title. It establishes a new form of
property rights for Indigenous landholders. This section also buttresses the
power of local councils and regional Indigenous bodies (who would both qualify as
“owner” under the proposed definition) at the expense of local Traditional
Owners and actual native title holders and claim groups.
The Wilderness Society's Dr Tim Seelig expanded on his concerns at the
This new bill is a rework of a previous bill. One of the
critiques of that previous bill was that it did not define ‘owner’ properly. In
our view, they have gone from a bad bill to an even worse bill by adding
complexity but not adding any clarity or transparency as to who is intended to
be captured by the act other than in our view the kind of real intent which is
simply to stop wild river declarations from happening if at all possible. In
our view, the definitions of ‘owner’ are confused. There is certainly no
consistency between this bill and the Native Title Act and how wild rivers
The CLCAC was joined by the Wilderness Society in their objection to the
proposition that the intent of the Bill was to recognise the rights of
traditional owners to be consulted on matters concerning their land, and submitted
Such an approach is also clearly opposite to Aboriginal law
and custom operating in the southern Gulf of Carpentaria which provides that
only traditional owners may speak for country. If the intent of the Bill was to
recognise the right of 'traditional owners' to be consulted about Wild River
declarations, then it has failed. In circumstances where there is a registered
native title claim or positive native title determination, then it is those
Aboriginal persons who have made the claim or have the benefit of the determination,
and only those persons, who should have the right to veto a proposed Wild River
At its hearing in Canberra, the committee heard a different view from Mr
Richie Ahmat, representing the Cape York Land Council, who argued that it was
wrong to say that the definition was confusing or that it could lead to
unintended consequences, and that the definition had enabled agreements to be
reached without difficulty in other cases.
As outlined in other parts of this report, this Bill differs from the
2010 version in its specification of various forms of Aboriginal land interest,
such as certain types of leasehold, trust or freehold ownership, as opposed to
merely specifying 'native title land' as was the case in the 2010 Bill.
The joint submission from the Balkanu Cape York Development Corporation
and the Cape York Land Council (Balkanu and CYLC) argued strongly in favour of
the inclusion in the Bill of the different land interests. Their submission
argued that the similar or identical definitions were used in other state and
Commonwealth legislation, and that:
Native title may co-exist on tenures that are categorized as
Aboriginal land, however protecting native title alone will not itself achieve
the objective of the legislation. It is essential to expand the Bill beyond
native title land to include Aboriginal lands to ensure that the latter is
treated the same as native title land because:
which applies only to native title is meaningless if native title holders cannot
pursue economic development opportunities if wild river restrictions continue
to apply to co-existing statutory Aboriginal landholders;
development approval process for native title holders under Queensland
legislation, particularly where there is non-exclusive native title, is
unclear. There is greater certainty of process where the holders of the
underlying Aboriginal tenure progress a development approval with the consent
of the native title holders rather than vice versa;
title may have been partially or completely extinguished on some Aboriginal lands
and therefore these lands would be excluded from the protection of economic development
lands in Queensland are often dedicated for the benefit of a broader group of indigenous
people than the native title holders. For example, the beneficiaries of Aboriginal
lands may be “Aborigines particularly concerned with the land”, and include
people who “live on or use the land or neighbouring land”. Many of the beneficiaries
of Aboriginal lands would be excluded from any benefit of provisions which
applied to native title holders alone.
At the committee's hearing, Mr Terry Piper, representing Balkanu and
appearing alongside the CYLC, added that:
Previously when the Senate considered the bill it was a bill
that addressed native title and it did not actually include in the landholder
definition the Aboriginal landholdings on Cape York. There are about seven
types of Aboriginal landholdings. [The change] does not increase the level of
complexity. The Queensland government and the Cape York Land Council are
dealing all the time with areas where Aboriginal land and native title coexist.
Various agreements have been reached, whether they are mining agreements or
other agreements, over Aboriginal land where native title coexists...We
strongly believe that we need to include the Aboriginal lands in this because
that is where the economic development issues in relation to the Wild Rivers
Act really impact.
However, the Queensland Government expressed concern at the definition of
'Aboriginal land' as land where native title exists, and expresses concern that
this may include land where native title had not been resolved, as did the
This uncertainty about the status of native title claimants under the Bill also
extended to native title holders. The CLCAC submitted that it was:
...concerned because it is not entirely clear how the
operation of the Native Title Act in its current form might deleteriously
affect the rights and interests of native title holders if other Aboriginal
persons were given the right to veto a Wild River declaration through the
operation of this Bill.
The CLCAC went on to predict conflict between Aboriginal persons and
groups, traditional owners and others were the Bill to become law.
Consistent with this committee's recommendation in its 2010 report, the
Queensland Government recommended that, if the intention is to extend the
rights afforded to native title holders, the more appropriate mechanism would
be an amendment to the NT Act, which already provides the framework and
processes to recognise and protect native title rights and interests.
Amendment to the Native Title Act was also suggested by the CLCAC, who
Rather than pursue this Bill, amendments should be made to
the Native Title Act to provide native title claimants and native title holders
with the right to prior informed consent. Such an approach has the added
advantage of affording a national (rather than in one part of one State) regime
and makes use of an existing defined process for seeking the consent or
agreement of traditional owners to development proposals...Whilst CLCAC
welcomes the Liberal Party‟s recent attempts to expand the rights of
traditional owners (and indeed Mr Abbott‟s consultations with us about
his proposals), we believe that the approach has been unfortunately misguided.
On the same point, the Wilderness Society submitted that:
If the Bill is intended to extend the rights afforded to
native title holders, a much more appropriate mechanism is the NTA. The Native
Title Act is the place for reform. Through this means the UN Declaration on the
Rights of Indigenous People (UNDRIP) could also be applied consistently to all
land and water policy areas across Australia, and all native title groups - and
national / community interest tests could also be applied. In addition, new
public policy could be developed to encompass the full suite of UN recognised
rights, and could form a component of constitutional recognition.
Paragraph 4(3)(b) would provide for the Commonwealth Government to
afford employment to any person who was assisting in the management of a wild
river area, and who loses employment as a result of enactment of the Bill.
Paragraph 8(2)(d) provides that the Governor General may make regulations for
the continued employment of such persons.
This provision is very broad, referring to the employment of any
person who is assisting in the management of a wild river area. The intended
scope of the provision is unclear. The committee is unaware of any similar
provision in legislation in force now or previously.
The CLCAC expressed confusion about the provision, submitting that:
...it is impossible to see how section 8 or section 4(3)(b)
can be enforced. Section 8 was added as an afterthought and clearly as a form
of inducement, however, it represents a duty of imperfect obligation and is
simply not enforceable by mandamus. Section 8(2)(d) also raises numerous
practical difficulties, raising more questions than answers, for example: What
work is being promised? Where? What will be the pay and conditions?
The Queensland Government made similar but more particular observations:
...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
in the absence of the regulation,
it is not clear over what period the Wild River Rangers will be guaranteed
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
Termination of employment by an Act of Parliament and
compensation for it is a very significant issue. Adequate parliamentary
scrutiny is essential, but a lack of care in the Bill's construction denies the
opportunity to give it thorough consideration.
While noting the presumed intention of the Bill to protect the
employment of indigenous wild river rangers, the Balkanu/CYLC submission
emphasised that the Bill would not result in the removal of existing wild river
declaration, and that as a result the need for land management would remain.
Definition of 'agreement'
Clause 5 provides that the development or use of Aboriginal land in a
wild river area cannot be regulated under the Queensland Act unless the owner
agrees in writing. This differs from the 2010 Bill in two respects, the term
'Aboriginal traditional owner' is no longer used and agreement must now be 'in
The Queensland Government expressed its misgivings about the agreement
provisions in the following terms:
The Bill provides...eight different definitions of 'owner'
and does not indicate that a lack of consensus among them is acceptable.
Accordingly, the resistance of anyone owner could have the power of blocking
the wishes of any other owner, even including a majority of owners, effectively
rendering 'consent' unworkable and therefore the Wild Rivers legislation, even
if supported by communities, unworkable.
The CLCAC was also dubious about the adequacy of the Bill's requirement
that agreement of native title holders be in writing, and expressed the view
that compliance with the provision would result in 'significant challenges'.
The Wilderness Society characterised the effect of the Bill as providing
a veto, and called for the theory and practice of Free Prior and Informed
Consent to be properly defined in the Australian context before it is 'applied
on a political basis to suit the preferences of one side of the argument over
The Queensland Government also expressed concern about the Indigenous
Land Use Agreements (ILUAs) to obtain owners' consent, submitting that ILUAs
are designed specifically to deal with native title matters under the NT Act
and were required to meet particular requirements to be authorised and
registered. The same point was made by the Wilderness Society.
Once again, the expanded list of owner categories was seen as a problem. The
Queensland Government submitted that:
Most categories of 'owner' in...the Bill are not native title
holders. There will be multiple parties involved as 'owners', many of whom will
have no native title rights and are not subject to ILUAs...For example, the
Native Title Act sets out a list of subject matters for ILUAs. An ILUA must
cover a matter relating to the native title rights and interests to be
registered. Therefore, an ILUA could not be negotiated with an owner who was
not a native title holder unless it also dealt with native title rights and
interests...Also, the making of a Wild River declaration is not a future Act
[under the NT Act] therefore any agreement...as proposed by the Bill would not
be dealing with native title rights and interests.
The Queensland Government went on to point out the cost, complexity and
time involved in developing ILUAs, and the near impossibility of generating an
ILUA for existing Wild Rivers declarations within the six month timeframe
prescribed by the Bill.
The committee acknowledges that the challenge of providing a
comprehensive and appropriate solution to economically and socially empower
Indigenous communities, while also providing necessary environmental
protection. However, the committee does not believe that this Bill provides any
solutions to these problems. Indeed, insofar as the Bill calls into question
the future of wild river rangers, the Bill may actually serve to undo some of
the good work currently being done.
It is worth noting in this context the committee's regret that an
Explanatory Memorandum was not been provided and that draft regulations have
not been prepared for scrutiny. Both these documents would have assisted the
committee in its inquiry by detailing the operation and effect of the Bill, and
perhaps addressing some of the concerns raised by its opponents.
In closing, the committee agrees in large part with the Wilderness Society's
that the Bill is poorly constructed and confusing. Key terms and concepts are
poorly defined and in some cases make no sense. The processes proposed are
unworkable as well as being ill-advised. If implemented, the Bill would result
in bad policy outcomes, as well as legal uncertainty for all stakeholders. This
Bill is a rehash of an earlier Bill, which suffered from major problems, and
this attempt to address a small number of those problems has resulted in an
even worse piece of proposed legislation, particularly when it comes to
defining who the Bill seeks to provide veto powers to and how they would be
The committee recommends that the Senate should not pass the Bill.
Senator Trish Crossin
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