CHAPTER 1


CHAPTER 1

Introduction and overview

Background

1.1        On 24 March 2011, the Senate referred the Wild Rivers (Environmental Management) Bill 2011 (the Bill) to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 10 May 2011.[1] The Bill was introduced in the Senate as a private senator's bill on 10 February 2011 by Senator the Hon. Nigel Scullion. No Explanatory Memorandum was provided.

1.2        The Senate agreed that

[I]n conducting its inquiry, the committee should only inquire into those provisions of the bill which have not been previously examined by the Legal Constitutional Affairs Legislation Committee in its inquiry and report into the Wild Rivers (Environmental Management) Bill 2010 [No.2].[2]

1.3        This earlier bill, the Wild Rivers (Environmental Management Bill) 2010 [No.2] (the 2010 Bill) was introduced by Senator Scullion on 23 February 2010.[3] The Senate referred the 2010 Bill to the Legal and Constitutional Affairs Legislation Committee for inquiry and report, and a report was tabled on 22 June 2010. While the report recommended that the Bill should be rejected, the Senate passed the Bill on 22 June 2010.[4] The House of Representatives did not have an opportunity to vote on the Bill before Parliament was prorogued on 19 July 2010 when the Federal election was called.

1.4        The Bill seeks to ensure that a wild river declaration made by the Queensland Government under the Wild Rivers Act 2005(the Queensland Act) does not apply to land owned by Indigenous people, unless agreement is provided in writing.

Wild Rivers Act 2005 (Qld)

1.5        The Queensland Parliament passed the Queensland Act in October 2005. The parliament intended the Act to 'preserve the natural values of rivers that have all, or almost all, of their natural values intact'.[5] The Queensland Act provides for a protective legislative scheme, part of which includes the power to declare wild rivers.[6]

1.6        Once an area has been declared a wild river area under the Queensland Act it is protected by a number of statutory controls in relation to the approval of a proposed activity or taking of a natural resource in a particular management area, if permitted.[7]

1.7        A wild river area includes, or may include, the following management areas:

  • high preservation areas
  • preservation areas
  • floodplain management areas;
  • sub-artesian management areas;
  • designated urban areas; and
  • nominated waterways.

1.8        High preservation areas are areas within and up to 1 kilometre each side of the wild river, its major tributaries and special features such as wetlands. Preservation areas are constituted of any wild river areas that fall outside high preservation areas. Floodplain management areas are key parts of floodplains that are closely linked to a wild river. Sub-artesian management areas are areas of groundwater that are directly connected to the flows in streams. Both floodplain and sub-artesian management areas may overlap with the high preservation and/or the preservation areas.[8] A designated urban area covers an urban precinct, and is not subject to the same controls. Nominated waterways are secondary streams in preservation areas that have been designated for wild river purposes.[9]

1.9        High preservation and preservation areas were the two management areas particularly discussed throughout this inquiry, and the 2010 inquiry.

1.10      Activities that are permitted in all areas include:

  • grazing, fishing, tourism, camping, hunting and gathering;
  • indigenous cultural activities, ceremonies and harvesting of bush food and medicines;
  • the enjoyment of native title;
  • outstation development;
  • use of rivers and creeks by recreational boat users;
  • mining, grazing and irrigation (where this activity had already commenced prior to the declaration);
  • new developments that do not impact the health of the river.[10]

1.11      Activities that are prohibited in high preservation areas include:  

  • operational works that interfere with a watercourse, lake or spring (including damns and weirs);
  • intensive animal husbandry;
  • aquaculture;
  • surface mining;
  • intensive agriculture.[11]

1.12      The preservation area is not subject to these prohibitions. Development activity in this area may continue to operate, commence or expand, subject to standard statutory approval processes. [12]

House Standing Committee of Economics Inquiry

1.13      The House Standing Committee of Economics (House Committee) is considering a Bill that is identical in content to the one before this committee, as part of the inquiry into Indigenous economic development in Queensland and review of the Wild Rivers (Environmental Management) Bill 2010.

1.14      On 3 November 2010 the Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon. Jenny Macklin MP, asked the House Committee to inquire into and report on Indigenous economic development in Queensland including issues surrounding the Queensland Act. The Leader of the Opposition, the Hon. Tony Abbott MP, introduced the Wild Rivers (Environmental Management) Bill 2010 to the House on 15 November 2010.[13] On 17 November 2010 the House of Representatives referred the Wild Rivers (Environmental Management) Bill 2010 to the Committee for Inquiry and Report by the end of the autumn period of sittings in 2011.

1.15      Information about the House Committee's inquiry is available on the website: https://www.aph.gov.au/house/committee/economics/WildRivers/index.htm .

Key provisions of the Bill

1.16      The Committee observes that the 2010 Bill has largely the same general purpose as the Bill that is the subject of this inquiry, although the 2011 version describes itself as seeking to protect the interests of Aboriginal people, as opposed to Aboriginal traditional owners in the earlier Bill. According to Senator Scullion's second reading speeches for both the 2010 Bill and the Bill that is the subject of this inquiry, they would enable 'the indigenous people of Cape York, the Queensland gulf region and other regions of Queensland, to use or develop their land as any other land holder may'.[14]

1.17      The main changes to the current Bill appear to be made in an attempt address drafting issues raised by the committee in its 2010 report. The Bill contains a number of significant new terms which the 2010 version lacked, and requires that agreement for the Queensland Act to apply be obtained in writing. The Bill also contains a new requirement for the Commonwealth to guarantee the employment of persons who become unemployed as a result of its operation. 

Clause 3: Definitions of new terms

1.18      The Bill contains some new important terms, not found in the 2010 iteration, and these are defined in Clause 3.

1.19      The first of these is the term 'Aboriginal land', which is defined as:

  • 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 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); and
  • the Aurukun Shire lease under the Local Government (Aboriginal Lands) Act 1978 (Qld).

1.20      The addition of the term 'Aboriginal land' expands the Bill's operation from native title land to various types of Aboriginal interests in land.

1.21      The 2010 Bill contained an undefined term 'Aboriginal owner'. This term has been replaced by the term 'owner', which is defined as:

  • 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 section 224 of the NT Act;
  • for a lease under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) – the lessee;
  • for deed of grant in trust under the Land Act 1994 (Qld) granted for the benefit of Aboriginal people – the grantee;
  • for 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, 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 register proprietor under the Land Title Act 1994 (Qld);
  • for the Aurukun Shire lease under the Local Government (Aboriginal Lands) Act 1978 (Qld) – the Aurukun Shire Council.

1.22      The committee observes that the definition of 'owner' is not consistent with the definition in the Queensland Act.

1.23      The new term 'register' has been added. This term refers to the Register established and maintained under Part 7 of the NT Act.

Clause 4 – Constitutional basis and object of the Bill

1.24       Like the 2010 Bill, the Bill relies on the Commonwealth's constitutional power to make laws for people of any race under section 51(xxvi) of the Constitution. Clause 4 also retains the intention that the Bill be a special measure for the advancement and protection of Australia's indigenous people, and to protect the rights of traditional owners of Aboriginal land within wild river areas to own, use, develop and control that land.

1.25      Sub-clause 4(3) states it is intended the Commonwealth Government should provide employment to any person who was assisting in the management of a wild river area, and 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.

Clause 5 – Agreement of owner required

1.26      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 writing'.

Clause 6 – Agreement under the NT Act

1.27      Clause 6 would provide that the agreement of a native title holder under Clause 5 may be obtained by an indigenous land use agreement (ILUA) as provided for in the NT Act. The indigenous land use agreement must contain a statement that the parties agree to the land being regulated, and must be registered in accordance with the NT Act.

Clause 7 – Transitional arrangements

1.28      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 owner of the Aboriginal or six months elapse from the commencement of the Bill, whichever occurs first. This provision also appeared in the 2010 Bill.

Clause 8 – Regulations

1.29      Clause 8 is another area in which the Bill differs slightly with its predecessor. The provision would confer a discretionary power upon the Governor-General to make regulations for the purposes of the Bill, as in the 2010 Bill. This discretion is not limited, but regulations may now also prescribe procedures for the continued employment of all existing Aboriginal people and other people in the implementation in the purposes of the Bill.

Conduct of the inquiry

1.30      The committee placed details of the inquiry, the Bill and the second reading speech on the committee's website. As an explanatory memorandum was not provided, further additional material about the purposes of the Bill and its key provisions was not available.

1.31      The committee contacted 26 organisations and individuals, inviting submissions by 12 April 2011.

1.32      Submissions were received from 12 individuals and organisations, as listed at Appendix 1. Submissions are available on the committee's website.[15]

1.33      The committee held a public hearing in Canberra on 27 April 2011. The witness lists for the hearings are at Appendix 2. Copies of the Hansard transcript are available on the committee's website.[16]

Acknowledgment

1.34      The committee thanks those organisations and individuals who made submissions to the inquiry, and those who gave evidence at the public hearing.

Note on references

1.35      Submission references in this report are to individual submissions as received by the committee, not to bound volume. References to the Committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcripts.

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