CHAPTER 2


CHAPTER 2

Key issues

Overview

2.1        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) (Queensland Act).

2.2        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.

2.3        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 Inquiry).[1]

2.4        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 Act.

Matters considered in the 2010 Inquiry

2.5        In this section the committee will briefly outline the matters considered in detail by in the 2010 Inquiry.[2]

2.6        The Legal and Constitutional Affairs Legislation Committee held hearings in Cairns and Canberra and received 38 submissions. The focal issues of the report were:

  • 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.

2.7        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)

2.8        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.[3]

2.9        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.

2.10      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.[4]

United Nations Declaration on the Rights of Indigenous Peoples

2.11      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.[5] 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.[6]

The consultation process adopted by the Queensland government

2.12      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.

Drafting issues

2.13      The committee gave particular attention to clauses 5 and 7 of the 2010 Bill.

2.14      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.

2.15       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).

2.16      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.

2.17      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.[7]

Economic opportunities in wild river areas

2.18      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.

2.19      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.

2.20      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.[8]

Constitutionality of the Bill

2.21      The 2010 Bill states that it relies upon the Commonwealth's legislative powers under paragraph 51(xxvi) of the Constitution. Section 51 relevantly provides

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.[9]

2.22      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 inconsistency.[10]

The Committee view for the 2010 inquiry

2.23      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.[11]

2.24      The committee recommended that the Senate not pass the Bill.

Matters considered in this inquiry

2.25      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

2.26      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.[12]

2.27      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 regulation.[13]

2.28      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.[14]

2.29      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.[15]

2.30      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.[16]

2.31      The Wilderness Society's Dr Tim Seelig expanded on his concerns at the committee's hearing:

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 currently works.[17]

2.32      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 that:

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 declaration.[18]

2.33      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.[19]

2.34      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.

2.35      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:

1.      Legislation 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;

2.      The 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;

3.      Native 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 opportunities; and

4.      Aboriginal 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.[20]

2.36      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.[21]

2.37      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 IDCWR.[22] 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.[23]

2.38      The CLCAC went on to predict conflict between Aboriginal persons and groups, traditional owners and others were the Bill to become law.[24]

2.39      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.[25]

2.40      Amendment to the Native Title Act was also suggested by the CLCAC, who argued that:

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.[26]

2.41      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.[27]

Employment guarantee

2.42      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.

2.43      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.

2.44      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?[28]

2.45      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 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.

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.

2.46      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.[29]

Definition of 'agreement'

2.47      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'.

2.48      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.[30]

2.49      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'.[31]

2.50      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 wild rivers'.[32]

2.51      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.[33] 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.[34]

2.52      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.[35]

Committee view

2.53      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.

2.54      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.

2.55      In closing, the committee agrees in large part with the Wilderness Society's contention[36] 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 exercised.

Recommendation 1

2.56      The committee recommends that the Senate should not pass the Bill.

Senator Trish Crossin

Chair

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