Queensland Parliamentary Library
A Framework to Protect Wild Rivers in Queensland – the Wild Rivers Bill 2005 (Qld)
On 24 May 2005, the Wild Rivers Bill 2005 (Qld) (the Bill) was introduced into the Queensland Legislative Assembly by the then Minister for Natural Resources and Mines, the Hon Stephen Robertson MP. It seeks to protect the last of Queensland’s free flowing rivers which have most, or all, of their natural values intact. The Bill will provide a structure for the declaration of a river as a ‘wild river’. The Bill will not, of itself, designate certain rivers to be ‘wild rivers’. Rather, it will provide a process for making a wild river declaration which will involve extensive consultation with communities before the declaration is finalised. Existing legislation (13 Acts) will be amended to control development activities and resource allocations in declared wild river areas. These regulatory measures will also take into account community input.
Certain activities, such as agriculture, animal husbandry, vegetation clearing, mining, and construction of dams and weirs, that have an immediate or substantial impact on the more sensitive ‘high preservation area’ will not be permitted. Activities and uses in other parts of the wild river area will be carefully managed. From the time the public notification of the intention to declare a wild river is given, a moratorium can be imposed to stop ‘panic’ development, clearing of vegetation, interfering with water, and other potentially damaging activities in the relevant area.
Nicolee Dixon
Research Brief No 2005/15
Queensland Parliamentary Library Research Publications and Resources Section Ms Karen Sampford, Director (07) 3406 7116 Mrs Nicolee Dixon, Senior Parliamentary Research Officer (07) 3406 7409 Ms Renee Giskes, Parliamentary Research Officer (07) 3406 7241
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© Queensland Parliamentary Library, 2005
ISSN 1443-7902 ISBN 1 921056 14 2 August 2005
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CONTENTS
EXECUTIVE SUMMARY ......
1 INTRODUCTION...... 1
2 WHAT IS A WILD RIVER?...... 1
3 NATURAL VALUES OF WILD RIVERS ...... 2
4 THREATS TO WILD RIVERS...... 3
5 COMMONWEALTH WILD RIVERS PROJECT ...... 4
6 BACKGROUND TO THE WILD RIVERS BILL 2005 (QLD) ...... 8
7 WILD RIVERS BILL 2005 (QLD)...... 11
7.1 PROCESS FOR MAKING WILD RIVER DECLARATIONS...... 13
7.1.1 Notice of Intent and the Declaration Proposal...... 14
7.1.2 Consultation...... 14
7.1.3 Decision About Making the Declaration ...... 15
7.2 MORATORIUM ...... 16
7.3 EFFECT OF A WILD RIVER DECLARATION ...... 17
7.4 AMENDMENT AND REVOCATION OF A WILD RIVER DECLARATION...... 18
8 PROHIBITION AND REGULATION OF ACTIVITIES AND THE TAKING OF NATURAL RESOURCES IN WILD RIVER AREAS...... 19
8.1 EXEMPTION OF PARTICULAR PROJECTS AND SPECIFIED WORKS ...... 19
8.2 INTEGRATED PLANNING ACT 1997 ...... 19
8.2.1 Agricultural and Animal Husbandry Activities...... 20
8.3 COASTAL PROTECTION AND MANAGEMENT ACT 1995 ...... 21
8.4 ENVIRONMENTAL PROTECTION ACT 1994 AND THE MINERAL RESOURCES ACT 1989 (MINING AND PETROLEUM ACTIVITIES) ...... 22
8.4.1 Environmental Protection Act 1994 ...... 22
8.4.2 Mineral Resources Act 1989 ...... 24
8.5 FISHERIES ACT 1994...... 25
8.6 FORESTRY ACT 1959 ...... 25
8.7 NATURE CONSERVATION ACT 1992 ...... 26
8.8 SIGNIFICANT PROJECTS – STATE DEVELOPMENT AND PUBLIC WORKS ORGANISATION ACT 1971 ...... 26
8.9 TRANSPORT INFRASTRUCTURE ACT 1994...... 26
8.10 VEGETATION MANAGEMENT ACT 1999...... 27
8.11 WATER ACT 2000...... 27
8.12 OTHER AMENDED ACTS...... 29
9 RESPONSES TO THE WILD RIVERS BILL ...... 30
10 INDIGENOUS ISSUES ...... 32
11 OTHER JURISDICTIONS...... 33
11.1 TASMANIA ...... 33
11.2 NEW SOUTH WALES ...... 34
11.3 VICTORIA...... 35
11.4 COMMONWEALTH ...... 36
11.5 INTERNATIONAL...... 36
RECENT QPL RESEARCH PUBLICATIONS 2005...... 39
Wild Rivers Bill 2005 (Qld)
EXECUTIVE SUMMARY
On 24 May 2005, the Wild Rivers Bill 2005 (Qld) (the Bill) was introduced into the Queensland Legislative Assembly by the then Minister for Natural Resources and Mines, the Hon Stephen Robertson MP. It seeks to protect the last of Queensland’s free flowing rivers which have most, or all, of their natural values intact. The Bill provides a framework preserving wild rivers for the benefit of current and future generations and fulfils a Labor Government commitment made prior to the February 2004 State election to identify and protect Queensland’s ‘wild rivers’. The Bill will not, of itself, designate certain rivers to be ‘wild rivers’. Rather, it will provide a process for declaring a river to be a wild river which will involve extensive consultation with communities before the declaration is finalised. Existing legislation will be amended to control development activities (e.g. mining, agriculture, animal husbandry, vegetation clearing, riverine disturbance, and construction of dams and weirs, in wild river areas) (p 1).
A ‘wild river’ is essentially a river that has all, or most, of its natural values intact. It has also been described as one that is free flowing – without dams and weirs – allowing for considerable biological diversity. It will have a number of conservation values and is important in the maintenance of a number of basic ecological functions. The majority of Queensland’s wild rivers are found in the Gulf of Carpentaria, Cape York Peninsula and the western Channel Country (pp 1- 2). A wild river’s natural values are the basis for sustaining healthy ecological processes in a river system. Those natural values are explained in detail on pp 2-3. The threats to wild rivers’ natural values, such as building dams and weirs, and vegetation clearing, are described on pp 3-4. In 1993, the Commonwealth Government’s Australian Heritage Commission began the Wild Rivers Project. This Project was subsequently overseen by the Wild Rivers Committee and, in 1998, produced the Report, Conservation Guidelines for Management of Wild River Values. The Report identified pressures on wild rivers, then set out draft Principles for maintaining wild river values and a draft Code of Management, including measures to ensure compatibility between the ‘use’ of wild rivers and ‘preservation’ of wild river values (pp 4-9). The background to the Queensland Bill, including the Queensland Labor Party’s 2004 State election policy ‘Protecting Queensland’s Natural Heritage: Wild Rivers' and the subsequent release of the Wild Rivers Policy Consultation Paper and the Explanatory Material for Consultation Draft Wild Rivers Bill is discussed on pp 9- 11. The objectives of the Bill and a description of key parts of a wild river area – the ‘high preservation area’; the ‘preservation area’; the ‘floodplain management area’; and the ‘subartesian management area’ – are set out on pp 11-13. The process for making a wild river declaration under the Bill, including the consultation process, is described on pp 13-16. The operation of a moratorium
Queensland Parliamentary Library during this declaration process is discussed on pp 16-17. The effect of a wild river declaration on activities and uses of natural resources in the wild river area is set out in pp 17-19. The Bill is essentially enabling legislation requiring that objectives of the Bill and any wild river declaration be taken into account when making decisions regarding certain developments and activities under other Acts (e.g. the Integrated Planning Act 1997 (Qld), the Vegetation Management Act 1999 (Qld), and the Water Act 2000 (Qld)). The declaration will set out controls and limits on various activities that must be considered in decisions made under those Acts and local government planning schemes. The ways in which amendments to 13 Acts effectively prohibit (mainly in the high preservation area), or otherwise regulate, activities and the taking of natural resources in wild river areas are discussed on pp 19-30. Responses from stakeholders to the introduction of the Bill have been mixed (pp 30-32). The importance of the participation of Indigenous communities and traditional owners in the management and implementation of control measures contained in the new legislation is outlined on pp 32-33. The position in some other Australian jurisdictions (Tasmania, New South Wales, and Victoria) and overseas countries regarding the protection of wild rivers is set out on pp 33-37.
Wild Rivers Bill 2005 (Qld) Page 1
1 INTRODUCTION
On 24 May 2005, the Wild Rivers Bill 2005 (Qld) (the Bill) was introduced into the Queensland Legislative Assembly by the then Minister for Natural Resources and Mines, the Hon Stephen Robertson MP. It seeks to protect the last of Queensland’s free flowing rivers which have most or all of their natural values intact. The Bill provides a framework for taking measures to preserve wild rivers for the benefit of current and future generations and fulfils a commitment made by the Labor Government prior to the February 2004 State election to identify and protect Queensland’s ‘wild rivers’. It also conforms to part of the National Water Initiative Agreement between Australian Governments to identify and acknowledge surface and groundwater systems of high conservation value and to manage and protect that value. Mr Robertson said that the Bill may create ecotourism opportunities as well as protect existing activities, such as fishing, that depend on the conservation of the natural values of these rivers. 1
The Bill will not, of itself, designate certain rivers to be ‘wild rivers’. Rather, it will provide a process for the declaration of a ‘wild river’ which will involve extensive consultation with potentially affected communities before the declaration is finalised. Existing legislation (13 Acts) will be amended to control development activities in wild river areas. Once a ‘wild river’ is declared, the consequent regulatory measures will also take into account community input. Certain activities, such as mining, agriculture, animal husbandry, vegetation clearing, riverine disturbance, and construction of dams and weirs, that have an immediate or substantial impact on the more sensitive ‘high preservation area’, will not be permitted. Activities and uses in other parts of the wild river area will be carefully managed. From the time the public notification of the intention to declare a wild river is given, a moratorium can be imposed to stop ‘panic’ development, clearing of vegetation, interfering with water, and other potentially damaging activities in the relevant area.
2 WHAT IS A WILD RIVER?
A ‘wild river’ is essentially a river that has all, or most, of its natural values intact.
A ‘wild river’ has also been described as one that is free flowing – without dams and weirs – allowing for considerable biological diversity. It will have a number of
1 Hon S Robertson MP, Minister for Natural Resources and Mines, Wild Rivers Bill 2005 (Qld), Second Reading Speech, Queensland Parliamentary Debates, 24 May 2005, pp 1529-1531, p 1530.
Page 2 Queensland Parliamentary Library conservation values and is important in the maintenance of a number of basic ecological functions. Indigenous traditional owners have a good understanding and knowledge of the environmental and heritage values of wild rivers. Compromising the natural values of a river system can erode cultural associations and lead to a loss of connection to country and the natural world.2 Therefore, Indigenous input is necessary in decisions regarding whether to declare a river to be a wild river.
The majority of wild rivers in Queensland are found in the Gulf of Carpentaria, Cape York Peninsula and the western Channel Country.
3 NATURAL VALUES OF WILD RIVERS
A wild river’s natural values are the basis for sustaining healthy ecological processes in a river system. These natural values also give the area its aesthetic and heritage appeal. Many such rivers provide habitat for endangered and threatened species of flora and fauna. A number of them supply water of high quality to downstream users and for activities such as irrigation, fisheries, and aquaculture.3 They additionally provide recreational and aesthetic experiences which are not catered for in less natural catchments. Wild rivers and their catchments may also provide valuable insight for scientific study. Indeed, wild rivers could be considered to be part of global life support systems through nutrient and water cycling and energy flow and other processes.4
The Queensland Government considers that the following natural values are the main focus of the proposed Wild Rivers Bill 2005 (Qld). 5
• hydrological processes (i.e. rainfall, runoff, infiltration) that transmit water from source to sea via stream and aquifer networks which, in wild rivers, have minimal impediment. The natural flow regime is preserved in wild rivers;
• geomorphic processes (i.e. erosion, transportation and deposition of sediment by water to coastal landscapes, floodplains or terminal wetlands) which
2 The Wilderness Society, Queensland Conservation Council and Environmental Defenders Office Queensland (Wild Rivers), ‘Indigenous rights and interests in wild rivers’, http://www.wildrivers.org.au/indigenous.php.
3 Commonwealth Government, Australian and World Heritage Group, Environment Australia, Conservation Guidelines for the Management of Wild River Values, Report, 1998, at http://www.heritage.gov.au/anlr/wild_riv/guide/, Part A, Wild River Values.
4 Environment Australia, Conservation Guidelines Report, Part A, Wild River Values, citing Biosis Research Pty Ltd, Australia's Near-pristine Rivers. Methodology for a National Study, A report to the Australian Heritage Commission, Australian Government. Publishing Service, Canberra. 1993.
5 See Wild Rivers Bill 2005 (Qld), Explanatory Notes, pp 6-7. Wild Rivers Bill 2005 (Qld) Page 3
maintain the physical integrity of the river system and uphold the ecology therein. These processes occur unimpeded in wild rivers and are not affected by extraction of quarry material;
• riparian function (i.e. bank stabilisation, provision and interfacing of aquatic and terrestrial habitats, natural filtering of pollutants) is healthy along the length of the river in wild rivers;
• physical and chemical quality of water that sustain aquatic and terrestrial flora and fauna is natural, or near natural which, in wild rivers;
• wildlife corridor function, within and along the river to enable aquatic and terrestrial fauna to live and migrate is largely healthy in wild rivers, allowing for free movement of fauna.
Under the new Bill, it will be the degree of presence of these natural processes, water quality, habitat and riverine biodiversity that will determine whether a river is declared to be a ‘wild river’. Thus, it is the unmodified and natural state of the rivers that is sought to be protected.
4 THREATS TO WILD RIVERS
Over the past two decades, many sections of the Australian community have expressed concern about the changes to many rivers caused directly or indirectly by human intervention – water usage, increasing salinity levels, development, land clearing, and building dams are just a few. The controversy surrounding the efforts of the Tasmanian Government to build a dam on the Franklin River in the early 1980s was possibly the first time in Australia that a wild river was in the public spotlight.
The Queensland Conservation Council (QCC), the Wilderness Society, and other conservation groups have sought better protection for Queensland’s remaining wild rivers since 2000.
Conservation groups have indicated that there are a number of reasons why wild rivers have almost disappeared. Dams and weirs, barrages, road crossings, over- extraction of groundwater resources, and broadscale vegetation clearing have all, in different ways, impacted on natural hydrological processes of these rivers.6 Artificial barriers in the river can degrade water quality, inhibit the flow of nutrients into the marine environment during floods, and impact on fish migration.
6 The Wilderness Society et al., ‘Why are we losing our Wild Rivers?’, http://www.wildrivers.org.au/why.php.
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A river’s geomorphic processes can be adversely affected by dams, weirs, barrages, instream extraction of sand and gravel, stream realignment, levee banks, soil erosion, and loss of riparian vegetation. Riparian function can be affected by clearing of vegetation, disturbance by stock, invasion of weeds, and altered geomorphic or hydrologic processes.7 Water quality can be adversely impacted on by pesticides, heavy metals and other unnatural pollutants and greater concentration of natural pollutants, as well as by clearing of the riparian vegetation. Dams, weirs, barrages, riparian vegetation clearing, and competition from non- indigenous fauna are among the factors which negatively impact on healthy and free wildlife corridor areas of wild rivers.8
Recreational fishing is an important part of Queensland’s tourism industry and there is a substantial commercial fishing industry in the Gulf of Carpentaria. Conservation groups argue that commercial fisheries in the Gulf, important to the State’s income and employment, will be threatened by a decline in wild rivers in the area.9
5 COMMONWEALTH WILD RIVERS PROJECT
In 1993, the Commonwealth Government’s Australian Heritage Commission began the Wild Rivers Project. This Project was subsequently overseen by the Wild Rivers Committee. The Committee includes representatives from Commonwealth, State and Territory government agencies concerned with water resource management and nature conservation, local governments, landowner representatives (National Farmers Federation), conservation groups, Indigenous people, and scientists.
The Project developed the Report, Conservation Guidelines for Management of Wild River Values (Conservation Guidelines Report) which was presented to the Commonwealth Minister for the Environment and Heritage in 1998.10 Assistance was provided by the Australian National University's Centre for Resource and Environmental Studies (CRES) and other expert consultants. CRES identified rivers across Australia that could be classified as wild rivers, and its findings were then taken on board by State and Territory agencies to further refine the data.11
7 Wild Rivers Bill 2005 (Qld), Explanatory Notes, p 6.
8 Wild Rivers Bill 2005 (Qld), Explanatory Notes, pp 6-7.
9 The Wilderness Society et al, ‘Healthy rivers mean a healthy economy’, http://www.wildrivers.org.au/fishing.php.
10 Environment Australia, Conservation Guidelines Report, http://www.heritage.gov.au/anlr/wild_riv/guide/.
11 For the State and Territory Lists of Natural Rivers and other information, see http://www.heritage.gov.au/anlr/code/idlists.html. Wild Rivers Bill 2005 (Qld) Page 5
The Conservation Guidelines Report discusses the impact of human activities on wild rivers and provides some draft Principles and a draft Code for wild river management. The aim of the Principles and the Code was to assist government and non-government resource managers to protect wild river values and to enable the adoption of nationally agreed guidelines based on the Code so to enable a better integrated and coordinated approach to management.
The Report identified the main pressures on wild rivers as 12 • grazing; • clearing; • irrigation; • cultivation; • flow regulation and water diversion; • river management works; • mining; • gravel, sand and soil extraction; • roads; • water-based recreation and tourism; • non-native plant and animal species; • aquaculture and fisheries; • timber production; • urban development; • infrastructure; and • fire. The premises which underlie the Principles and the Code of Management are broadly that –
• primary control and management must come from the States and Territories, which may require a degree of cooperation between States where a river crosses borders so that activities within a catchment can be managed;
• the Principles and Code should be applied by all land and water resource managers;
• the importance of the role of Indigenous groups in determining the management of wild river areas in their traditional lands must be recognised;
• the spiritual and cultural significance of wild rivers should be considered for conservation;
• a river system should be seen as an integral entity so that the condition of the river is connected to the health of the catchment as a whole;
12 Environment Australia, Conservation Guidelines Report, Part A, Wild River Impacts.
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• the impact of human activities on both an individual and a cumulative basis is a necessary feature of management.
A number of these underpinning concepts seem to emerge in the Queensland Wild Rivers Bill.
Principles for maintaining wild river values were set out in Part B of the Conservation Guidelines Report. These Principles include attempting to minimise disturbance to hydrological, geomorphological, and biological processes of wild rivers caused by development by undertaking only those activities in the river or catchment that leave the river environment substantially unmodified; maintaining the natural condition of a wild river and catchment areas and wild river values; and restoring or mitigating any past disturbances, among other measures.
A management planning process was also set out in Part B. Such a process, involving all relevant stakeholders and Indigenous people, was advocated for each wild river and catchment area which recognises the area’s special features and values and identifies any potential threats. In addition, it was indicated that ongoing monitoring and research was needed to enable preventative and remedial actions to be taken in the future. It was also stated that operations conflicting with maintenance of wild river values should be carried out only in a genuine emergency and for essential purposes. The incorporation of the principles of Ecologically Sustainable Development13 and Integrated Catchment Management (ICM)14 was also recommended in this process.
The general part of the Code of Management (in Part C) addresses major impacts on wild river values and suggests planning and management actions to protect them. It sets out a number of goals and the objectives for achieving them. In terms of a general approach for management, the goal is to ‘conserve wild river values by protecting them from human induced hydrological, geomorphological, and biological disturbances, and by allowing the associated natural systems and ecological processes to continue indefinitely.’15 The five objectives are then set out and they include (see Part C of the Report for more detail) –
13 In essence, this term describes the use, conservation and enhancement of our natural resources so that ecological processes, upon which life depends, are maintained and the quality of life can be increased: see Environment Australia, Conservation Guidelines Report, Part B. The term also embraces the precautionary principle that measures should be taken to prevent or minimise adverse impacts even in the face of scientific uncertainty about such impacts.
14 ICM principles, in the context of wild rivers, include the incorporation of the management of the catchment to prevent unacceptable disturbances; a coordinated approach by all land users and water managers to protect wild rivers; and a framework for planning and management to involve all resources within a catchment: Australian Water Resources Council, ‘Proceedings of the national workshop on integrated catchment management’, Australian Water Resources Council Conference Series No. 16, 1988. See also the Murray-Darling Basin Commission at http://www.mdbc.gov.au/naturalresources/icm/icm_framework.htm.
15 Environment Australia, Conservation Guidelines Report, Part C, para 6.1. Wild Rivers Bill 2005 (Qld) Page 7
• management objectives (which includes the need to identify existing and potential threats to values and to prevent them from degrading those values);
• management planning (which includes the need for a plan to be prepared within two to three years of the designation of a wild river area. The plan should include a number of specified matters);
• management and/or emergency operations (which includes the operation of infrastructure etc. necessary for maintaining wild river values [e.g. fire prevention]);
• building community support and awareness for conservation so that the Code will be followed (e.g. providing resources and guidebooks to recreational groups using the area; community education etc.); and
• the role of Indigenous groups in developing environmental resource management policies and in the implementation process.
The part of the Code of Management setting out ‘Compatibility of Uses’ (also in Part C) adopted the approach that the assessment of compatibility of a ‘use’ and ‘wild river values’ should be based on the need to prevent significant disturbance to these values. The management of ‘uses’ is briefly outlined as follows –
• vegetation clearing, grazing and cultivation – further clearing of natural vegetation is inconsistent with maintaining wild river values; activities such as grazing of livestock should be assessed for likely adverse impacts; other uses should be controlled through various measures such as codes of practice;
• river modification and flow alteration – no new barriers, structures etc. to regulate flow or restrict movement of wildlife should be allowed in upstream areas;
• mining and gravel etc. extraction – some activities can be managed so they can be undertaken under stringent conditions to minimise significant impact. Mineral exploration activities can generally be undertaken with low impacts but each technique must be assessed for potentially adverse impacts on wild river values;
• infrastructure – some roads and tracks that do not impact on wild river values could remain open but no new ones should be constructed where there is potential for detriment unless for emergency purposes; utility easements could continue to be used if not causing significant disturbance to wild river values but if there is such disturbance, they should be modified or relocated and new power lines, pipelines etc. should be planned to avoid impact on values where possible;
• recreation and tourism – when planning for such uses, agencies should consider the ability of the river and surrounding areas to sustain these uses without
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significant alteration; monitoring of visitor impact should occur and, if needed, regulated to protect values. Some activities, such as fishing, motor recreation, and camping may need special management to reduce adverse impacts on biological, geomorphological and other processes. Licensing could apply to commercial tourist operations using wild river areas and licences may include requirements such as the need to adhere to a code of conduct for the particular operation. Tourist numbers directly using wild rivers may have to be limited in some cases. There may need to be improved management of walking tracks and camp sites to minimise environmental degradation by visitor numbers and some may have to be closed, if necessary. Use of powered watercraft should be regulated in wild river areas;
• introduced plants and animal species – action should be taken, where possible, to prevent such introduction in wild river areas and existing species controlled or removed;
• fisheries and aquaculture – proposed aquaculture projects in the catchments should take account of potential off-site impacts on aquatic ecosystems in wild rivers (e.g. spread of disease, pollution, nutrients); and the impact of commercial fishing should be assessed, taking into account measures to minimise future impacts; and a quota system could be considered for recreational fishing if required to protect wild river values;
• timber production and harvesting – should not be permitted in wild river areas if they are likely to have an adverse impact on wild river values and, if they are permitted, should be regulated through codes of forest practice regarding drainage, felling etc.;
• fire management – should be based on results of ongoing research into the impact on ecological systems; otherwise fires should be used only in an emergency and for essential management; and
• research contributing to management of wild rivers should be supported.
As will be seen later in this Brief, the Queensland Wild Rivers Bill appears to adopt a number of the above approaches to the regulation of activities and resource use in wild river areas.
6 BACKGROUND TO THE WILD RIVERS BILL 2005 (QLD)
During the February 2004 election campaign, the Beattie Government stated that, if re-elected, it would introduce specific legislation to protect wild rivers and Wild Rivers Bill 2005 (Qld) Page 9 associated wetlands. However, the Government also pledged to honour existing agreements, permits, lease conditions and undertakings in wild river areas.16
Approximately 18 rivers, creeks and streams were set out in the Queensland Labor Party’s ‘Protecting Queensland’s Natural Heritage: Wild Rivers Policy’ as having wild river potential, most being in the Gulf of Carpentaria, Cape York, and the Far North. The potential wild rivers identified included the Jardine, Lockhart, Stewart, Wenlock and Watson Rivers.17
The policy commitment was reported to be welcomed by conservation groups. The Greens deputy convener, Juanita Wheeler, commented that the party had been fighting for wild rivers ‘since Bob Brown rafted down the Franklin in the 1970s’.18 The QCC’s rivers campaigner, Rupert Quinlan, stated that the Policy may encourage ecotourism in Cape York and the Gulf, as well as protect the Gulf’s $40 million prawn industry which would be adversely affected if as little as 10% of river flows were taken away.19 However, some conservationists fear that the resulting legislation would be ‘soft’ in order to protect agriculture and mining interests.20
On the other hand, the Mayor of the Cairns City Council, was concerned that Bill could be too limiting and that the restrictions on dam construction would conflict with the demand for more water in the Far North of the State. Councillor Byrne is reported to have suggested that a ‘no-dam’ policy was incompatible with any attempt to encourage growth and development in the area.21
The Government considered that new stand-alone legislation was necessary to achieve its wild rivers policy because –
• not all activities that impact on the natural values of river systems are currently regulated (e.g. there is no comprehensive regulation of agricultural activities, apart from a few local government planning schemes);
• apart from water resource planning, no mechanisms exist to comprehensively manage, at the catchment level, all resource allocations and activities that have an impact on natural values. For example, vegetation management occurs at a regional ecosystem scale with no real focus on preservation of natural river system values;
16 Peter Beattie & Labor, ‘Keeping Queensland Moving’, ‘Protecting Queensland’s Natural Heritage: Wild Rivers Policy’ 2004.
17 ‘Protecting Queensland’s Natural Heritage: Wild Rivers', Policy 2004.
18 ‘Labor to ban wild river dams’, Cairns Post, 29 January 2004, p 9.
19 Brendan O’Malley, ‘ALP river plan attracts wild support’, Courier Mail, 29 January 2004, p 6.
20 Brian Williams, ‘Ban on dams to protect rivers’, Courier Mail, 15 December 2004, p 15.
21 Damon Guppy, ‘No dams plan for wild rivers’, Cairns Post, 12 May 2004, p 8.
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• no framework currently exists to set appropriate limits on resource allocations and activities for the purpose of preserving natural values of river systems. Most legislation regulating resources and activities that set limits do so under principles of ecologically sustainable development (ESD). ESD allows for some loss in natural values to enable economic and social gain whereas the level of protection needed for preserving values of wild rivers is higher; and
• no process presently operates to coordinate and integrate the regulation of various resource allocations and activities that impact on natural values of river systems. Instead, there are several Acts which separately manage land, water, vegetation and marine resources with no legislation to coordinate these powers for the purpose of preserving a wild river’s natural values. While local government planning schemes could coordinate management of these resources to an extent, there are few local government areas that cover an entire river catchment.22
In December 2004, Cabinet approved preliminary implementation arrangements for the wild rivers policy, subject to peak stakeholder consultation. In February 2005, the Government released a Wild Rivers Policy Consultation Paper23 which was circulated to key stakeholders to facilitate discussion on the policy behind the proposed Wild Rivers Bill. The Consultation Paper sought to clarify the intention of the policy and provide relevant details about it.
This was followed by the production of the Explanatory Material for Consultation Draft Wild Rivers Bill in late March 2005.24 Meetings were held on request by stakeholder representatives to discuss the draft Bill with a view to a draft being submitted to Cabinet for consideration by the middle of May 2005.
A spokesman for the primary industry body, AgForce, Kim Bremmer, reportedly feared that the Bill will prevent future sustainable development, thus having a great impact on farmers and local communities who have been managing development in a sustainable manner.25 AgForce has urged that principles of ecologically sustainable development (ESD) be included in the Bill to ensure that all economic and social factors are taken into consideration in declaring a river to be a wild river.26
22 Wild Rivers Bill 2005 (Qld), Explanatory Notes, pp 1-2.
23 Queensland Government, Wild Rivers Policy Consultation Paper, February 2005.
24 Queensland Government, Explanatory Material for Consultation Draft Wild Rivers Bill, March 2005.
25 Steve Gray, ‘Lock-up of rivers a threat’, Cairns Post, 2 May 2005, p 17.
26 Steve Gray. Wild Rivers Bill 2005 (Qld) Page 11
Some conservation groups are disappointed that apparently only a few rivers are being considered for designation as a ‘wild river’ and wish to see around 60 rivers included, such as the upper part of the Noosa River, the Maranoa, Georgina, Paroo and Cooper Creek.27 Any moves to increase the number of rivers subject to the new legislation have been opposed by farming groups such as AgForce.28
7 WILD RIVERS BILL 2005 (QLD)
In May 2005, the then Minister for Natural Resources stated that the Bill sought to achieve ‘a balance between protecting the valuable natural heritage of wild rivers while ensuring that communities in those catchments … remain viable’.29 Mr Robertson commented that, for example, it would be inappropriate to ban any new structures no matter how small or insignificant if it resulted in inadequate water supplies for rural communities in Cape York.30
The Bill will not, of itself, designate certain rivers to be ‘wild rivers’. Rather, it will provide a process for declaring a river to be a wild river which will involve extensive consultation with communities before the declaration is finalised.
The purpose of the Bill is to preserve the natural values of wild rivers that have all, or almost all, of their natural values intact. This objective will be achieved mainly by establishing a framework to provide for the regulation (through other legislation) of activities and the taking of natural resources in a wild river and its catchment so that these natural values are preserved: cl 5. Wild rivers and their catchments will be treated as a single entity because the health of one impacts on the other. Where a wild river crosses a State border, a cooperative approach with the other State will be adopted.
It will be the ‘degree of naturalness’ of a river (including its unmodified hydrologic, geomorphic and biological processes creating good water quality, instream habitat and riverine biodiversity) that will be the main criterion for determining whether or not it should be nominated for wild river status, not any ancillary value that could be more appropriately protected under other regimes (e.g. those under the Nature Conservation Act 1992 (Qld)).31
27 Kathy McLeish, ‘Wild Rivers’, Stateline Queensland, ABC Online, 17 June 2005, http://www.abc.net.au.
28 Lauren Mifsud, ‘Greens target 60 ‘wild’ rivers’, Queensland Country Life, 31 March 2005, p 7.
29 Hon S Robertson MP, Minister for Natural Resources & Mines, ‘Minister assures protection of wild rivers’, Media Statement, 25 May 2005.
30 Hon S Robertson MP, ‘Minister assures protection of wild rivers’.
31 Wild Rivers Policy Consultation Paper, p 5.
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It was considered that the management of wild rivers should cover the whole river system in order to preserve natural values, and include any significant groundwater resource that has a natural hydraulic connection to the surface flows of the river.32
The Bill adopts a precautionary approach to ensure that activities, developments and the taking of natural resources are managed in such a way as to minimise adverse effects on known natural values and to reduce the possibility that ecological functions that are imperfectly understood at present will be adversely affected before scientific and other advances give rise to further understanding.
The Bill is essentially enabling legislation requiring that the objectives of the Bill and any wild river declaration be taken into account when making decisions regarding certain developments and activities under other Acts (e.g. the Integrated Planning Act 1997 (Qld), the Vegetation Management Act 1999 (Qld), and the Water Act 2000 (Qld)).33 The declaration will set out controls and limits on various activities that must be considered in decisions made under those Acts and local government planning schemes.
Through the declaration, the wild river area will, or may, comprise a high preservation area, a preservation area, a floodplain management area, and a subartesian management area.
The high preservation area of a wild river is –
• the river itself;
• its major tributaries;34
• any special features in the wild river area – i.e. hydrologically connected off- stream elements of the river network that play a significant role in maintaining natural values of the river (e.g. wetlands, connecting land surrounding a gorge);35 and
• the area (essentially a buffer zone) of up to 1km either side of the wild river, its major tributaries and any special features, as stated in the declaration.
The natural values of a wild river are such that changes to the above areas (which are in, or near to, the wild river) caused by activities and the taking of natural resources etc. will be felt more appreciably because of their proximity to the river.
32 Wild Rivers Policy Consultation Paper, p 2.
33 Wild Rivers Bill 2005 (Qld), Explanatory Notes, p 3.
34 The Bill’s Explanatory Notes, pp 24-25, set out the principles for how ‘major tributary’ will be determined.
35 As explained at p 25 of the Bill’s Explanatory Notes. Wild Rivers Bill 2005 (Qld) Page 13
Thus, some activities and resource allocations that have the potential for greater adverse impact on natural values will be prohibited in the high preservation area.
The remainder of the wild river area is the preservation area. Activities, developments and resource allocations in this area will tend to have a lesser impact on the natural values of the wild river. Thus, a framework is provided for the regulation of activities and resource allocations which, individually or cumulatively, may have an adverse impact on those values.
Note that a floodplain management area and a subartesian management area may be over all, or part, of the high preservation area or the preservation area: cl 41(3). A floodplain management area is one which covers major floodplain unit(s) requiring certain regulation for managing the interference with overland flows. The subartesian management area will cover certain subartesian aquifer or aquifers known to be hydrologically connected to the wild river.
The boundaries for protection of the wild river will be established on the basis of ecological, hydrological, geomorphological and cultural advice from experts and local communities.36
7.1 PROCESS FOR MAKING WILD RIVER DECLARATIONS
Part 2, Division 1 of the Bill sets out the process by which the Minister may declare a part of the State to be a wild river area. Such an area might be an entire river catchment or just part of it. A wild river declaration will also apply to the river catchment. The declaration may provide for one or more rivers to be a wild river.
There will be four main steps –
• the Minister notifies an intention to declare a wild river, including a moratorium notice;
• the declaration proposal which includes community consultation;
• the assessment of submissions and the making of a decision by the Minister; and
• the approval of the declaration (if the Minister decides to make it) by the Governor-in-Council.
36 Hon S Robertson MP, ‘Minister assures protection of wild rivers’.
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7.1.1 Notice of Intent and the Declaration Proposal
The first step is that the Minister will broadly publish a notice of an intention to declare a wild river area (notice of intent) to advise those community members that could be affected by the declaration: cl 8. As explained later, the notice of intent will describe the moratorium on certain activities etc. that will operate until a decision on a declaration is made.
It appears that, in practice, before the Minister publishes a notice of intent to declare a wild river area, the Minister will consult with other Ministers and seek any relevant information from other agencies before going ahead.37
As soon as practicable after the notice of intent is published, the Minister must prepare a declaration proposal for the proposed wild river area and publish a notice about it (or the notice can be incorporated in the notice of intent): cl 11. The notice must, among other requirements about content, indicate where the proposal can be obtained and the process for making submissions about it. The minimum period for making submissions will be 20 days.
The information that can be contained in the declaration proposal is set out in cl 12. It can include things such as the description of the proposed wild river and wild river area, maps, the natural values intended to be preserved, the location of various areas to be managed, the activities that will be prohibited or regulated or otherwise controlled, and proposed threshold limits and codes, among other matters. The proposal is designed to set out the history and reasons for the possible declaration and likely new controls and requirements that will operate if the river is declared. The proposal might also indicate details of the community consultations that will take place on the proposed declaration.
7.1.2 Consultation
The consultation provisions in the Bill recognises that communities in the affected areas may have concerns that the new laws will prevent all future development in wild river areas and prohibit all existing activities. Thus, the Bill provides for the views and concerns of those potentially affected by a wild river declaration to be considered by the Minister in deciding whether or not to make a declaration.38
All documents and notices listed in cl 39 that are relevant to the initial declaration proposal must be available for public inspection in the ways mentioned in that provision. In essence, the documents are sent to the relevant local government
37 Wild Rivers Bill 2005 (Qld), Explanatory Notes, p 8.
38 Hon S Robertson MP, ‘Minister assures protection of wild rivers’. Wild Rivers Bill 2005 (Qld) Page 15 which must make a copy available for inspection and the chief executive must also make them available at the head office of the Department of Natural Resources and Mines (DNR&M). The Minister can also send a copy of the documents to any other appropriate entity. An ‘appropriate entity’ could include an Indigenous radio station so that the station can advertise the proposal to a remote Indigenous community which would not be otherwise able to inspect the documents.
A consultation process will also apply in relation to the amendment and revocation of a declaration (discussed below) and the requirements of cl 39 also apply.
To ensure transparency of the consultation process for the approval, amendment or revocation of a declaration, the Minister will be required to prepare a report on that process which includes a summary of the issues raised and how they were dealt with: cl 38.
7.1.3 Decision About Making the Declaration
When the Minister is making a wild river declaration, there are a number of matters which must be considered. These include (but are not limited to) the results of community consultation on the declaration proposal; properly made submissions; and any water resource plan (WRP) or resource operations plan (ROP)39 that applies to the wild river area: cl 13. If a WRP or ROP applies to a part, or all, of the proposed wild river area, the declaration must not be inconsistent with the WRP or ROP (and the WRP or ROP will prevail).40 However, if the declaration differs in relation to certain aspects set out in cl 13(2), the declaration prevails in those circumstances. For example, the declaration can list the types of works for taking overland flow water that are assessable or self-assessable development under the Integrated Planning Act 1997 (IP Act) even if this is inconsistent with the WRP or ROP for the area, and the declaration prevails in that instance.41
If the Minister decides not to proceed with the declaration, the Minister must publish a notice setting out the reasons for not going ahead: cl 15.
Once the Minister makes the declaration, the Governor-in-Council may approve it by gazette notice at which time it takes effect as a statutory instrument: cl 16.
39 WRPs and ROPs are instruments for managing the taking and allocation of water, made under the Water Act 2000 (Qld).
40 See cl 37.
41 See cl 14(1)(h) to (l) for the matters that the declaration can list even if inconsistent with a WRP or ROP.
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7.2 MORATORIUM
The notice of intent will establish the duration of a moratorium which operates until either the wild river declaration takes effect or it is decided not to make the declaration: cl 9. The purpose of having a moratorium is to stop a rush of development in and around a river that may impact on its natural values in anticipation of a wild river declaration being made.42 Under cl 10, the notice of intent applies as a moratorium on specified activities regulated under various pieces of legislation. This ensures that activities which would be regulated or prohibited if a declaration is eventually made are not permitted during the lead up to the decision whether or not to make a declaration. The moratoria that will operate in the proposed wild river area are –
• water moratorium – an application for a water entitlement under the Water Act 2000 (Qld) will not be accepted or decided if granting it would have the effect of increasing the amount of water that may be taken, or change the location from which it may be taken, or increase the rate at which water may be taken, or change the flow conditions, or increase or change the interference with the water, or change the purpose for which the water may be taken or interfered with. New works must not be started or completed works altered etc. if to do so would have similar impact;
• vegetation clearing moratorium – an application for vegetation clearing in the proposed wild river high protection area will not be considered to be properly made under the Vegetation Management Act 1999 (Qld) (and, thus, not accepted) if the purpose for which the application is made is one listed in the proposed new s 22A(2A) of that Act. The effect is that during the moratorium period, applications to clear vegetation in the proposed high preservation area will be accepted only if the clearing is –
o necessary to control non-native plants or declared pests;
o to ensure public safety;
o for establishing a necessary fence, firebreak, road or built infrastructure if there is no suitable alternative site;
o a natural and ordinary consequence of other assessable development under the Integrated Planning Act 1997 (Qld) for which approval was given or an application was made before 16 May 2003; or
o for clearing of encroachment.
42 Wild Rivers Bill 2005 (Qld), Explanatory Notes, p 9. Wild Rivers Bill 2005 (Qld) Page 17
Thus, applications for clearing for other specified purposes, such as for fodder harvesting, or for an extractive industry, or for a significant State project, will not be accepted. This is because the potential ‘high preservation area’ is one of significant biophysical importance to the maintenance of wild river values and these activities could have an adverse impact on those values.
• mining moratorium – an application under the Mineral Resources Act 1989 (Qld) for a grant/renewal of a mining tenement, other than a mining claim, in the proposed high preservation area or in any watercourse or lake in the proposed wild river area will not be accepted or decided during the moratorium period. An exception applies if a Special Agreement Act under s 614 of the Environmental Protection Act 1994 (Qld) (e.g. 'Comalco' Agreement Act 1957) applies to the application.
7.3 EFFECT OF A WILD RIVER DECLARATION
The actual wild river declaration is intended as a regulatory instrument. The information that it must include is set out in cl 14(1). It will, for example, describe the wild river and the wild river area, the location of the high preservation area and preservation area, the location of any floodplain management area or subartesian management area (including maps of the area). It will also detail what activities or the taking of natural resources that will be prohibited or regulated but the declaration will not, of itself, prohibit or regulate these things. That will occur through amendments to legislation which currently regulate activities and the taking of resources, as explained earlier.
The declaration will set out the matters to be considered in making decisions about whether to allow an activity or a development to be carried out or a natural resource to be taken in the area. It will state the types of works for taking or interfering with overland flow that are assessable or self-assessable development (explained later) under the Integrated Planning Act 1997 (Qld) (IP Act).43 There will be a list of threshold limits and codes for the carrying out activities or the taking resources in the area. In respect of certain activities regulated under the IP Act, a special code will be developed for the wild river area, and referred to in the declaration, and a development application regarding such activities must be assessed against that special code. The declaration can also include a process for reserving or granting unallocated water for specific purposes.
The Bill will not include enforcement or compliance provisions. Such matters are provided for in the relevant Acts applying to the particular activity in question. For example, development approvals are currently enforced under the IP Act and this
43 See also cl 14(1)(j)-(k) for where there is a floodplain management area or a subartesian management area.
Page 18 Queensland Parliamentary Library will continue to be the case. What the declaration may do is to provide for a certain development to be prohibited in the high preservation area but the decision to prohibit it will be taken under the Act which applies to the particular activity.
Despite the moratorium regarding new applications (as described earlier), existing agreements, permits, lease conditions, and undertakings are preserved by cl 17. Thus a person may continue, or start and continue, to carry out the activity or take the resource under the relevant authorisation as if the declaration had not been made. For example, an irrigator who was taking water from the river under the Water Act 2000 just before the declaration came into force will be able to continue to take that the water but only in accordance with any existing regulatory constraints on the irrigator.44
In addition, the Minister will have to prepare regular reports on each declaration, the first of which must be within five years after the declaration is approved, which must include particulars of any changes to the declaration and a summary of the findings of DNR&M’s research and monitoring in the area. It can also include findings of research and monitoring by other government departments: cl 40.
7.4 AMENDMENT AND REVOCATION OF A WILD RIVER DECLARATION
The wild river declaration can be amended if the Minister is satisfied that the purposes of the Act are not being met in the relevant area. The process for doing so is set out in Part 2, Division 2 (and is similar to that for the original declaration, including consultation and the imposition of a moratorium).
On the other hand, a declaration can be revoked in accordance with the process established by Part 2, Division 3. This could happen if, for example, the wild river no longer has the natural values making it special or there is some reason for an activity to be developed that would cause the area to change.45 The effect is that persons undertaking activities or taking resources will no longer subject to any conditions or requirements that applied because of the declaration. As with the making of a declaration, a community consultation and submission process will occur before the Minister makes a final decision about revoking the declaration.
44 See also cl 18 regarding applications received but not decided before the declaration takes effect but to which the moratorium does not apply. The application must be decided as if the declaration had not been made.
45 Wild Rivers Bill 2005 (Qld), Explanatory Notes, p 21. Wild Rivers Bill 2005 (Qld) Page 19
8 PROHIBITION AND REGULATION OF ACTIVITIES AND THE TAKING OF NATURAL RESOURCES IN WILD RIVER AREAS
Apart from certain instances mentioned below (see also cls 42-43), the prohibition and regulation of various activities, the taking of natural resources, and developments in a wild river area will be through other Acts which will be amended by the Bill (see Schedule 1): cls 44, 52. This will ensure that the wild river declaration is properly implemented.
8.1 EXEMPTION OF PARTICULAR PROJECTS AND SPECIFIED WORKS
Both the Aurukun and the Papua New Guinea (PNG) pipeline projects (as defined in cls 46-47) are exempt from any application of the new laws as well as from any wild river declarations or moratoriums: cl 45. However, these projects will still have to satisfy the requirements of other applicable legislation (e.g. the IP Act).
In addition, exceptions are allowed in relation to ‘specified works’ even if the amendments to other legislation effectively prohibits (in the way described later) a development. A development application can sometimes be lodged if the development is for ‘specified works’. A definition of ‘specified works’ is provided in cl 48 and includes de-snagging (the minimum necessary to allow safe navigation of a marked navigable channel); disaster management infrastructure and works as prescribed by Regulation; and certain infrastructure and works (e.g. roads, railways, pipelines, electricity infrastructure). The exception does not mean that the specified works will be allowed, just that the development application can be lodged, and the proposed works must then be assessed against the various requirements and any applicable codes identified in the wild river declaration in determining whether approval can be given.
8.2 INTEGRATED PLANNING ACT 1997
If an activity is ‘assessable development’ under the IP Act it must have development approval before it can be started. Some activities that are currently ‘self-assessable development’ or exempt from requiring development approval will (in the case of wild river areas) become assessable development under Schedule 8, part 1 of the IP Act and be subject to the Integrated Development Assessment System (IDAS) process to obtain development approval before the work can commence.
The IP Act does not actually prohibit development activities. The Bill will therefore amend other Acts concerned with regulating certain activities through the IP Act to ensure that applications for some activities in particular parts of wild river areas (generally, the high preservation area) will not be regarded as ‘properly made
Page 20 Queensland Parliamentary Library applications’. As a result, those applications cannot be received and assessed under the IP Act. This has the effect of prohibiting such activities.
In areas where such activities are allowed (generally other than in high preservation areas), the applications will be assessed according to a wild river declaration code which is attached to the relevant declaration for the area in question. 46
The Explanatory Notes (p 30) mention that where a development application describes the relevant land by lot and plan and the high preservation area only covers part of that land, uncertainty may arise about whether the application can be received. Accordingly, the DNR&M is liaising with other agencies about possible changes to the application forms.
8.2.1 Agricultural and Animal Husbandry Activities
Agricultural activities and animal husbandry activities have the potential for an adverse impact on wild river values yet there is currently little regulation, apart from in some local government planning schemes, of these activities or the operational works (defined in the IP Act as covering many actions such as extraction works; clearing vegetation; constructing or installing things for taking or interfering with water; tidal works etc.) for them. In addition, there is no consistent approach to the management of either activity.
Clause 42 of the Bill will operate in conjunction with the abovementioned amendments to the IP Act to control agricultural activities and animal husbandry activities and operational works for them in wild river areas, with a focus on the natural values of the river.
The Bill’s definition of ‘agricultural activities’ is quite broad and covers activities such as cultivating soil; planting, gathering or harvesting crops; disturbing soil for establishing non-indigenous grasses etc.; or using land for horticulture or viticulture (however, a number of exceptions apply e.g. production of agricultural products for domestic use). ‘Animal husbandry activities’ include breeding, keeping, raising or caring for animals on a commercial basis; or establishing a piggery, feedlot or dairy (however, exceptions apply for activities such as grazing, aquaculture, or raising livestock for domestic needs).
Under the IP Act, certain material changes of use (i.e. the start of a new use such as conversion of grazing to cropping, re-establishing a use, or materially changing the intensity or scale of the use) of premises are assessable development if they appear
46 See also cl 43 regarding certain developments in relation to urban, commercial or industrial development in wild river areas. Wild Rivers Bill 2005 (Qld) Page 21 in Schedule 8, part 1, table 2. The consequence is that development approval is required through the processes set out in the IP Act.
The Bill amends Schedule 8, part 1, table 2 by inserting a new item 11 so that a material change of use of premises in a wild river area for agricultural or animal husbandry activities will become assessable development.
The Bill also amends Schedule 8, part 1, table 4 by inserting a new item 10 so that operational work for agricultural or animal husbandry activities in a wild river area will become assessable development under the IP Act if the declaration determines those operations to be assessable development.
The first situation to be considered is the carrying out of any of the above activities in the preservation area of a wild river. When there is to be a material change of use of premises in the preservation area for agricultural or animal husbandry activities or operational work for such activities, it must have development approval under the IP Act: cl 42. In assessing and determining the application for such approval, the assessment manager (likely to be DNR&M) and any concurrence agency must comply with the applicable code for the development mentioned in the wild river declaration.
Secondly, agricultural activities and animal husbandry activities, or operational works for such, will be effectively prohibited in the high preservation area of the wild river area: cl 42(2), (3) (i.e. an application for development in the high preservation area will be taken ‘not to be a properly made application’).
8.3 COASTAL PROTECTION AND MANAGEMENT ACT 1995
The main features of proposed amendments to the Coastal Protection and Management Act 1995 to govern works in tidal areas include –
• applications to extract instream quarry material in wild river marine or tidal areas will be effectively prohibited in those areas: proposed new s 73(3);
• new operational works in a wild river area mentioned in Schedule 8, part 1, table 4, item 5 of the IP Act (various operational work that is tidal work or work within a coastal management district such as disposing of dredge spoil or reclaiming land) are effectively prohibited unless they are for specified works (see cl 48). In the case of specified works, the application must be assessed under the IP Act in accordance with the applicable code for the development mentioned in the wild river declaration: proposed new s 104A.
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8.4 ENVIRONMENTAL PROTECTION ACT 1994 AND THE MINERAL RESOURCES ACT 1989 (MINING AND PETROLEUM ACTIVITIES)
8.4.1 Environmental Protection Act 1994
Under the Environmental Protection Act 1994 (EP Act) and the Environmental Protection Regulation 1998, a number of activities are designated as ‘environmentally relevant activities’ (ERAs). These are activities which will, or may, release contaminants into the environment which will, or may, cause environmental harm. There are three levels of ERAs, depending upon the risk of environmental harm posed, which determine the extent of regulation for such activities (the strictest applying to level 1 ERAs). Examples of a level 1 ERA are most extractive industries, conducting a large piggery or cattle feedlot, chemical processing or manufacturing, and some aquacultural activities.
Codes of environmental compliance can be made under the Environmental Protection Regulation and tend to apply to standard type projects that do not have significant environmental impact. A ‘code-compliant’ development application is one for which a relevant code of environmental compliance is applicable and the applicant elects to comply with it. On the other hand, a ‘non-code compliant’ development application is one which has no relevant applicable code or the applicant elects not to comply with the code.47
A proposed new s 73AA will be inserted into the EP Act to apply to a development application under the IP Act for a material change of use of premises for an ERA (other than a mining activity or a petroleum activity) for which a code of environmental compliance has not been made under the Environmental Protection Regulation 1998. It will also apply to aspects of development for an ERA (other than a mining activity or a petroleum activity) for which a code of environmental compliance has been made but only if the ERA will occur in a wild river area.
If any part of the above application will relate to development in a high preservation area or an ERA for dredging and for extracting rock or other material in all watercourses and lakes in the preservation area, it will be effectively prohibited.
If the development is not prohibited – because it is not in the high preservation area nor relate to an ERA for dredging and extracting rock and other material – then it is to be assessed in accordance with the applicable code for the development mentioned in the wild river declaration.
47 Environmental Protection Act 1994 (Qld), Chapter 4A, Part 2. Wild Rivers Bill 2005 (Qld) Page 23
A number of amendments are made in relation to petroleum activities in wild river area including (see the Schedule 1 amendments to the EP Act for the complete range –
• any environmental authorities issued for level 2, code compliant, petroleum activities must require that the conditions stated in the wild river declaration are complied with;
• in deciding whether to grant an application for a non-code compliant petroleum activity, the administering authority must consider the wild river declaration and authorities that are issued must include conditions set out in the declaration;
• when applications for a level 1 petroleum activity are being considered, the wild river declaration will be one of the relevant criteria and the conditions of an authority issued for a level 1 petroleum activity must include those stated in the declaration.
A number of amendments are made in relation to mining activities in wild river area including (see the Schedule 1 amendments to the EP Act for the complete range) –
• any mining activities authorised under an environmental authority in a wild river area, other than a prospecting authority or a mining claim authority, will now be a ‘level 1 mining project’;
• mining activities covered by a prospecting authority or a mining claim authority will be a ‘level 2 mining project’;
• when decisions are being made about whether an environmental impact statement (EIS) will be required in relation to an application, the wild river declaration is to be taken as part of the criteria for making that decision in relevant cases. Thus, the wild river’s natural values will be a relevant factor in determining the necessity for an EIS;
• a proposed new Chapter 5, Part 2, Division 3 will cover decisions in relation to non-code compliant applications for an environmental authority to undertake prospecting or mining claim activities in a wild river area. Those activities could impact adversely on the natural values of the wild river, but the impact potential will vary from case to case. It may be that an environmental management plan (EM plan) is needed for an application. In determining whether it is needed, the administering authority must consider the ‘standard criteria’ (as set out in the Dictionary to the EP Act to include matters such as principles of ecologically sustainable development, applicable environmental policies, any EIS etc.) and the wild river declaration. If no decision is made within 10 business days about whether an EM plan is required, it is taken that it is not necessary. The EM plan will have to state how the applicant proposes to
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minimise any adverse impacts in the wild river area, having regard to the declaration. It must be completed before the application is decided;
• consideration of a relevant wild river declaration will be required in relation to deciding applications for certain level 1 and level 2 mining projects; and when considering whether additional conditions should be imposed on certain mining claim authorities for level 1 mining projects and certain non-code compliant level 2 projects;
• consideration of a relevant wild river declaration will be required in relation to deciding applications for an environmental authority (exploration or mineral development) for a level 1 mining project and also for a non-code compliant application for a mining lease environmental authority for a level 1 project;
• if a non-code compliant application relates to a mining lease authority for a level 1 mining project, the EM plan must state how the applicant proposes to minimise any adverse effects of the activities on the wild river area; and
• when the Land and Resources Tribunal is considering objections about non- code compliant applications for an authority for a mining lease for a level 1 mining project, it must consider the relevant wild river declaration. The declaration must also be taken into account by the EPA Minister when deciding the application in cases where objections have been received in relation to it.
8.4.2 Mineral Resources Act 1989
A proposed new s 391AA of the Mineral Resources Act 1989 will establish certain restrictions regarding the grant and renewal of mining tenements in the high preservation area and in any watercourses or lakes of all wild river areas.
A new mining tenement must not be granted in the high preservation area other than for a watercourse or lake (i.e. no mining tenements on land in the high preservation area). However, the only tenement that may be granted in a watercourse or lake in the wild river area will be an exploration permit for exploration using only limited hand sampling techniques. Such techniques are defined in s 391AA(5) to indicate reasonably non-intrusive activities such as the taking of samples no larger than 20kgs, small amounts of digging, non-mechanical removal of materials. Mining tenements can still be granted in the preservation area outside of watercourses or lakes.
Mining claims and exploration permits of the above type will be able to renewed anywhere in a wild river area.
The restrictions will also not apply to projects subject to a Special Agreement Act which are allowed to be made under that Act (e.g. the 'Comalco' Agreement Act 1957). Wild Rivers Bill 2005 (Qld) Page 25
8.5 FISHERIES ACT 1994
Highlights of the proposed amendments to the Fisheries Act 1994 include –
• decisions in relation to applications for authorities under the Act must have regard to any applicable wild river declaration;
• a proposed new s 76DA will deal with applications regarding aquaculture and waterway barrier works in wild river areas. Development applications for a material change of use for aquaculture and operational work for waterway barrier works in wild river areas will now be assessable developments under the IP Act (thus requiring development approval). However, if any part of the application for the new development is in a high preservation area, it will be effectively prohibited. To the extent that the development is in the preservation area, it will be assessed against the applicable code for the development mentioned in the wild river declaration;
• similar requirements to the above will apply in relation to development applications for operational work relating to the removal, destruction etc. of marine plants in a wild river area: proposed new s 76DB. The changes will prohibit the development anywhere in the wild river area (apart from specified works or operational work necessary to install works or infrastructure). When assessing an application for operational work for specified works or operational work that is necessary to install works or infrastructure, the code in the wild river declaration must be complied with;
• development applications for building or operational work in declared fish habitat areas in wild river areas will become assessable development and will be prohibited in high preservation areas unless it is for specified works. Otherwise (in relation to applications for building or operational work in the preservation area or for specified works) the assessment must be in accordance with the applicable code in the wild river declaration: proposed new s 76DC; and
• it will be unlawful to release non-native fish etc. (which can affect the number and breeding cycles of many native species of fish) into the watercourse in a wild river area.
8.6 FORESTRY ACT 1959
Under proposed amendments to the Forestry Act 1959, the chief executive (of the Department of Primary Industries and Fisheries) must, pursuant to proposed new s 33A, prepare a management plan for the management of State forests, timber reserves and forest entitlements areas in wild river areas. In so doing, he or she must have regard to any relevant code of practice approved under proposed new
Page 26 Queensland Parliamentary Library s 44A. The forestry code of practice, if one is approved, must state a minimum distance either side of a wild river or major tributary within which forest products must be retained. Leases, licences and permits granted, or agreements/contracts entered into, for getting forest products must require that the getting of the forest products is in accordance with that code: proposed new s 44B.
Licences for getting quarry material in a watercourse or lake in wild river areas will no longer be permitted – effectively prohibiting the issue of licences for instream quarrying under the Forestry Act 1959. This is also the case for permits, etc. for getting of instream quarry material in a watercourse or lake in the area.
8.7 NATURE CONSERVATION ACT 1992
Proposed new s 117(1)(A) of the Nature Conservation Act 1992 will provide that a final management plan for protected areas under that Act must be consistent with any wild river declaration applying to all, or part, of the protected area unless the management plan provides a greater level of environmental protection.
8.8 SIGNIFICANT PROJECTS – STATE DEVELOPMENT AND PUBLIC WORKS ORGANISATION ACT 1971
The State Development and Public Works Organisation Act 1971 applies to significant State projects. The amendments made by the Bill ensure that development applications associated with such projects will be assessed, where appropriate, against applicable codes identified in the relevant wild river declaration. A proposed new s 37A will ensure that such applications for a material change of use of premises in a wild river area, after the declaration takes effect, go through the information and referral stage of the IDAS process under the IP Act. Normally, projects of State significance undergo an environmental assessment process outside that part of the IDAS process relating to information request and referral. If there is any inconsistency between a condition attached to the approval by the Coordinator-General and one imposed in accordance with the assessment under the IP Act, the latter prevails.
An amendment to s 138 will prevent the Coordinator-General from raising or lowering the level of the water in any body of water, or taking, impounding, diverting or using the water without proper authorisation.
8.9 TRANSPORT INFRASTRUCTURE ACT 1994
Amendments to the Transport Infrastructure Act 1994, as well as changes to other legislation, will ensure that new instream mining and stream realignment activities Wild Rivers Bill 2005 (Qld) Page 27 will be prohibited in wild river area. However, it will still be possible to extract quarry material from non-watercourse and lake areas. The new provisions will have effect in relation to carrying out road works, railways and busways in wild river areas.
8.10 VEGETATION MANAGEMENT ACT 1999
Changes to the Vegetation Management Act 1999 (VM Act) will ensure that a wild river high preservation area will also be an area of ‘high nature conservation value’ under the VM Act (given the similarity in the declaration processes under both pieces of legislation). The code for vegetation clearing in the wild river declaration will be the ‘declared area code’ for the wild river area. Proposed new ss 19A-19C set out the process for amending declared area codes which includes full consultation. The effect is that vegetation clearing in such areas will be regulated against the declared area code.
A proposed new s 22A(2A) will have the effect of prohibiting the clearing of vegetation if it is in a high preservation area and is for any of the listed purposes in specified paragraphs of s 22A(2). Thus, clearing is prohibited for certain significant projects under the State Development and Public Works Organisation Act 1971; fodder harvesting; thinning; an extractive industry; or clearing regrowth on leases issued under the Land Act 1994 for agricultural or grazing purposes.
The purposes for which clearing of vegetation will be permitted (if the application obtains approval) will be limited to that necessary to control non-native plants or declared pests; to ensure public safety; or for establishing a necessary fence, firebreak, road or built infrastructure; or is a natural and ordinary consequence of certain other approved development.
8.11 WATER ACT 2000
Amendments to the Water Act 2000 will enable a wild river declaration to be a further measure for regulating the taking of overland flow water or the taking or interfering with subartesian water where such a declaration is in place.
Water Resource Plans (WRPs) will have to be consistent with a wild river declaration in the relevant plan area and the contents of the declaration must be considered when the Minister is preparing a draft WRP. The WRP will continue to be the mechanism for defining how, when and where water can be taken and the declaration will prevail for issues not covered by the WRP, such as land use
Page 28 Queensland Parliamentary Library controls.48 Similar requirements will operate in relation to Resource Operations Plans (ROPs). For example, a new WRP would not be able to provide for additional volumes of water unless it was consistent with the wild river declaration and water management needs to continue to protect wild river values.
A wild river declaration may include a process for the future allocation of water. While the Bill does not itself limit the amount of water that can be taken from a wild river, the wild river declaration can set threshold limits. The former Minister for Natural Resources proposed that no more than 1% of water be allowed to be drawn annually from wild rivers.49 A proposed new s 1014(2)(ga) will allow a Regulation to provide a process for granting or dealing with unallocated water in a wild river area. Allocation of water in the area will tend to reflect the characteristics of the particular area (e.g. geography) but will generally involve a combination of standard licensing and reservation for future purposes.50
The following measures will apply regarding the prohibition and control of various activities in wild river areas that fall within the province of the Water Act 2000 –
• a proposed new s 266(4) will have the effect of prohibiting the destruction of vegetation or excavation in a watercourse, lake or spring; or the placing of fill in a watercourse, lake or spring in a wild river area unless it is for an activity to control non-native plants and pests; or for specified works (see cl 48); or for an activity that is a necessary and unavoidable part of installing or maintaining works or infrastructure needed to support other permitted development. An amendment to s 814 will mean that any Regulation that provides for an exemption to needing a permit will no longer apply for a wild river area. The Explanatory Notes (p 52) comment that this change recognises that any previous exemption for destroying vegetation etc. would not have taken into account the high level of natural values of a wild river area. Note that ‘vegetation’ is defined to include dead vegetation insofar as it relates to a wild river area;
• allocations of quarry material in any watercourse or lake in a wild river area will be effectively prohibited: proposed new s 280(3).
• for operational work associated with taking water or interfering with water in relation to overland flow and subartesian water (proposed new s 966A) –
48 Explanatory Material for Consultation Draft Wild Rivers Bill, p 19. See cl 13 regarding when the wild river declaration will prevail when it is inconsistent with a WRP or ROP (as discussed earlier).
49 Hon S Robertson MP, ‘Minister assures protection of wild rivers’.
50 Explanatory Material for Consultation Draft Wild Rivers Bill, p 20. Wild Rivers Bill 2005 (Qld) Page 29
o if the work is to occur in the high preservation area it will be effectively prohibited unless it is for town water supply or is for operational work related to a granted water entitlement or water permit;
o if the work is in relation to a granted water entitlement or water permit, or for town water supply in a high preservation area, or is in a preservation area, the application must be assessed against the applicable code for the development mentioned in the wild river declaration;
• if the operational work is associated with the taking or interfering with overland flow water in the wild river floodplain management area51 (proposed new s 966B) –
o the work is effectively prohibited unless it is for specified work (see cl 48) or is for operational work that the wild river declaration permits;
o if the work is for specified work or operational work that the wild river declaration permits, the code in the wild river declaration will apply to the assessment of the application;
• any development in relation to the removal of instream quarry material in a wild river area will effectively be prohibited: proposed new s 966C;
• permits for IP Act approval for development will now be subject to the permit being in accordance with the wild river declaration.
Other amendments to the Water Act will ensure that a mechanism is provided for regulating works in relation to overland flow on a floodplain in wild river areas (proposed new s 1013C); and to allow for the management of subartesian areas (proposed new s 1046(8)).
8.12 OTHER AMENDED ACTS
The Bill also makes consequential amendments to the Fossicking Act 1994 to effectively prohibit fossicking in all watercourses, lakes and in the high preservation area of wild river areas and to the Land Protection (Pest and Stock Route Management) Act 2002 to allow the issue of pest control notices in wild river areas requiring removal and so on of a specified pest.
51 A wild river floodplain management area will be taken to be a drainage and embankment area under the Water Act 2000 (Qld).
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9 RESPONSES TO THE WILD RIVERS BILL
In June 2005, the Wilderness Society expressed support for the new Wild Rivers Bill but indicated its disappointment that no funding had been allocated in support of the wild rivers initiative.52 However, the Explanatory Notes for the Bill (p 4) envisage that some additional costs associated with consulting communities about wild river declarations may be incurred and will be dealt with if necessary. The Explanatory Notes also make the point that the additional costs of assessment of development applications in wild river areas should not be significant because the regulation processes in existing Acts will apply to most of them and that, in any event, wild rivers tend to be in areas that have little development pressure.53
The Wilderness Society considers that some changes should be made to the Bill to make it truly groundbreaking. It considers that the Bill should include, among other things, third party enforcement rights (which exist in Acts such as the IP Act for development offences). It also advocates the establishment of a Technical Advisory Panel of scientific experts to provide independent advice to the Minister on a methodology for identification and protection of wild rivers as well as the best measures for restoring and protecting degraded river values.54 In response to e- Petition No. 407-05,55 the then Minister for Natural Resources said that while a formal panel will not be created, Mr Robertson had asked his Department to investigate the establishment of a non-statutory statewide panel to provide information regarding wild river declarations.56
The Environmental Defenders Office (Qld) (EDO) worked with the Queensland Conservation Council (QCC) and the Wilderness Society to provide a submission to the Government on the draft Bill57 and has expressed its disappointment that a number of suggestions were not included in the Bill as introduced into the Parliament. In particular, the EDO considered that protection of wild rivers was compromised by the Bill exempting the Aurukun and PNG pipeline projects from the legislation; by its amendments to the Mineral Resources Act to permit the
52 The Wilderness Society, ‘Wild Rivers’, http://www.wilderness.org.au/campaigns/wildrivers/.
53 Wild Rivers Bill 2005 (Qld), Explanatory Notes, p 4.
54 The Wilderness Society, ‘Let the Rivers Run Wild in Queensland’, http://www.wilderness.org.au/campaigns/wildrivers/let_rivers_run_wild/.
55 E-Petition No. 407-05 from 1383 petitioners, requesting the House to ensure the long term protection of Queensland wild rivers, was sponsored by Mr R Lee MP, Principal Petitioner being the Wilderness Society, and was tabled in the Queensland Parliament on 24 May 2005.
56 Response from the Minister for Natural Resources and Mines (Hon S Robertson MP) tabled 14 July 2005.
57 The Wilderness Society, et al, Submission on the Wild Rivers Policy: Explanatory Material and Draft Wild Rivers Bill 2005, http://www.wildrivers.org.au/documents/WildRivers_Submission_2005.pdf Wild Rivers Bill 2005 (Qld) Page 31 granting of mining exploration permits in watercourses or lakes in wild river areas; and prohibiting dams and weirs only in the high preservation area which was in contrast to the Government’s election promise that dams would not be built on wild rivers.58 The former Minister believes that the Bill does not break the Government’s election promise because it allows only small dams and weirs for town and community water supplies to be constructed. Mr Robertson is reported to have said that to do otherwise would have been unfair.59
Conversely, because most of the proposed wild rivers are in Cape York, the Cape York Council argues that local communities may suffer if potential investment is deterred by new strict controls on water supply. Agricultural bodies also fear that they will be limited in their ability to improve pastures. The Mining Resource Council is also nervous because Cape York is one of Queensland’s largest mining areas and argues that if the legislation had existed 10 years ago, the Century Mine – one of the largest zinc mines in the world – would not have been built, thus depriving the State of economic benefits.60
The former Minister has pointed out that stakeholders will be consulted before a ‘wild river’ is declared and all concerns would be raised and considered at that stage. Mr Robertson also said that discussions were still ongoing and the debate in Parliament on the Bill may result in some changes before it is passed. However, he also stated that the main principles underlying the legislation will remain.61
Mr Robertson is reported to have highlighted some of the economic, as well as environmental, benefits that may result from the new laws. He said ‘beef producers really rely on their clean, green image and it could well be that nominating a particular river as a wild river in some of these areas actually complements what our graziers or landholders are trying to achieve in terms of how they market their product’.62 The Minister also considers that the rivers may also provide significant scientific, recreational and cultural heritage benefits to all Queenslanders.63
Shadow Minister for Natural Resources, Mr Jeff Seeney MP, is reported to have said that while ‘the concept of protecting valuable places is something we support, we are concerned that there be opportunities for development to co-exist’.64 Following a
58 Environmental Defenders Office (Qld) Inc. (North Queensland), Online Bulletin, May 2005, http://www.edo.org.au/edoqld/new/may05.pdf.
59 Brian Williams, ‘River protection a national first’, Courier Mail, 25 May 2005, p 13.
60 Kathy McLeish, ‘Wild Rivers’, Stateline Queensland.
61 Kathy McLeish, ‘Wild Rivers’, Stateline Queensland.
62 ‘Qld wild rivers to be protected’, ABC Rural News, 25 May 2005, http://www.abc.net.au/rural/.
63 ‘Qld wild rivers to be protected, ABC Rural News.
64 Brian Williams.
Page 32 Queensland Parliamentary Library meeting with residents in Cooktown and Hope Vale in late May, Mr Seeney reportedly commented that the ‘wild rivers legislation throws a blanket over any chance those communities [on the Cape] have to progress their social and economic welfare’.65
10 INDIGENOUS ISSUES
Wild rivers and their catchments have traditionally provided a focus for spiritual and cultural activities for Indigenous people. The Conservation Guidelines Report noted the importance of involving Indigenous people in the management of wild rivers.66
Conservation groups acknowledge that traditional Indigenous owners have the right to be involved in managing the natural and cultural values in their lands and in decisions that affect the use of those lands and their associated natural resources. It is considered that Indigenous knowledge is important to understanding the environmental and heritage values of wild rivers. Accordingly, the conservation groups consider that the Government should address Indigenous rights and interests in conservation issues by encouraging the active participation by traditional owners in the implementation of the new legislation.67
It has been stated that the management planning processes for wild rivers needs to identify Indigenous cultural values associated with rivers, watercourses etc. and to protect these through cooperation between traditional owners and Indigenous communities, State agencies, and other stakeholders. In addition, the Government should ensure that legislation meeting high standards of ecological integrity adequately deals with Indigenous tenure and management issues and delivers a coordinated management strategy (bringing together conservation science and Indigenous ecological knowledge).68
Many of the proposed wild rivers exist in areas where many Indigenous people live and are land holders. They will, therefore, have direct concern with the declaration of particular wild rivers and how those declared areas might restrict or enhance their economic and cultural interests. Those concerns could be addressed through the active involvement of Indigenous people with rights and interests in a proposed wild river area, which could include cross-cultural dialogue and agreement making
65 Peter Michael, ‘Wild river plan cops ALP flak’, Cairns Post, 1 June 2005, p 11.
66 Environment Australia, Conservation Guidelines Report, Summary.
67 The Wilderness Society, ‘Indigenous rights and interests in Wild Rivers’, http://www.wildrivers.org.au/indigenous.php.
68 Wilderness Society and Queensland Conservation Council, ‘Caring for Queensland’s Wild Rivers: Indigenous rights and interests in the proposed Wild Rivers Act’, A Native Title & Protected Areas Discussion Paper, 2005, p 5. Wild Rivers Bill 2005 (Qld) Page 33 in that proposal process.69 As mentioned earlier, existing agreements, permits, lease conditions etc. in wild river areas will be honoured.70
11 OTHER JURISDICTIONS
Each State and Territory has its own legislative scheme for managing water resources but only New South Wales and Victoria appear to have extensive specific legislative provisions concerned with the protection of wild or ‘unregulated’ rivers and the surrounding catchment areas.
In other jurisdictions, there may be some regulation of uses and activities in particular areas, such as national parks, designed to protect the quality of water in a river and its catchment, an example being the National Parks and Reserves Management Act 2002 (Tas).71
11.1 TASMANIA
It is estimated that 96% of Tasmania’s identified wild rivers occur within the Comprehensive, Adequate and Representative (CAR) reserve system defined during the Regional Forest Agreement which agreed that the CAR system provided adequate protection for wild rivers. Reserves under the Nature Conservation Act 2002 (Tas) are managed according to the objectives under the National Parks and Reserves Management Act 2002 (Tas) and its Regulations. Although the main focus is the protection of conservation values and wild rivers are not specifically covered in either piece of legislation, it appears that wild river values are protected as a conservation value in the reserves and can be controlled under management plans.72
69 Wilderness Society and QCC, A Native Title & Protected Areas Discussion Paper, pp 8-9.
70 ‘Protecting Queensland’s Natural Heritage: Wild Rivers Policy 2004’. See also Wild Rivers Bill 2005 (Qld), cl 17.
71 At http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=all;doc_id=62%2B%2B2002%2BAT% 40EN%2B20050713000000;histon=;prompt=;rec=;term=national%20park.
72 Tasmanian Department of Primary Industries, Water and Environment, ‘About Wild Rivers’, Information Sheet, http://www.dpiwe.tas.gov.au/inter.nsf/ThemeNodes/RPIO-4YG3GU?open.
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11.2 NEW SOUTH WALES
The New South Wales National Parks and Wildlife Act 197473 was amended during the mid 1990s to provide for the declaration of wild rivers. Pursuant to s 61, a river, or part thereof, can be declared to be a wild river. The purpose of making a declaration is to identify, protect and conserve any (or part of any) watercourse, watercourse network, or any connected network of water bodies, of natural origin, exhibiting substantially natural flow and containing remaining examples of –
• the biological, hydrological and geomorphological processes associated with river flow; and
• the biological, hydrological and geomorphological processes in those parts of the catchment with which the river is intrinsically linked, so as to enable that river, or part, to be managed in accordance with specified principles. Those principles are –
• the restoration (wherever possible) and maintenance of biological etc. processes associated with wild rivers and their catchments, including natural flow variability; and
• the identification, conservation, and appropriate management of Aboriginal objects and places.
The effect of a wild river declaration is that a statutory authority must not carry out development in relation to a wild river unless it has consulted with, or considered any advice given by, the Minister for the Environment in relation to the development. A ‘development’ means constructing a building, carrying out of a work, use of the area or building of a work in the area, subdivision of the area, and clearing of vegetation.
Where there is a plan of management in force with respect to any river, or part thereof, a wild river declaration must not be made except in accordance with that plan. Plans of management are statutory documents, governed by Part 5 of the Act and must be prepared for areas managed by the National Parks and Wildlife Service (e.g. each national park, historic site, nature reserve, State conservation areas and regional parks). The plans of management must take account of a number of matters listed in s 72AA(1), including the protection and management of wild rivers. Most of the considerations relate to park management principles and issues of nature conservation, Aboriginal and historic heritage conservation, recreation, commercial use, research and communication. The plan can do any of a number of things such as specify any permitted activities and the nature of any development etc. regarding that activity. Once a plan is adopted, operations in the relevant area
73 At http://www.austlii.edu.au/au/legis/nsw/consol_act/npawa1974247/s61a.html. Wild Rivers Bill 2005 (Qld) Page 35 must be undertaken in accordance with it. The development of plans of management involves a public exhibition of the draft plan and submission process prior to adoption of the final plan by the Minister.
It appears that the provision for declaration of a wild river in the National Parks and Wildlife Act has yet to be used.74 Some management plans indicate potential wild rivers within the area they operate (e.g. Blue Mountains National Park Plan of Management). 75
11.3 VICTORIA
In Victoria, the Heritage Rivers Act 199276 provides for the protection of public land in particular parts of rivers and catchment areas which have significant nature conservation, recreation, scenic or cultural heritage attributes. This legislation was developed following a 1987 investigation by the Victorian Land Conservation Council into the aforementioned values which recommended how those values could be protected.
Under the Act, certain rivers are to be maintained in a free-flowing state so that no impoundments, barriers or structures can be built in the identified corridors along the rivers. Schedule 1 of the Act identifies specific areas of land as ‘heritage river areas’. The provisions apply only to public land. The relevant management authority has to take all reasonable steps to ensure that the significant nature conservation, recreation, scenic or cultural heritage attributes of the area are protected and prepare a management plan (which, as with the NSW legislation, undergoes public consultation before receiving approval from the Minister).
A range of uses are permitted provided they are consistent with the recommendations of the Land Conservation Council made under the Land Conservation Act 1970 (as set out in Schedule 4 of the Heritage Rivers Act) but a number of land and water based activities are not permitted. Prohibited activities include construction of artificial barriers or structures that hinder the passage of water fauna and cause significant impairment to the area’s nature conservation etc. attributes. Diversion of water in such areas is controlled. The following activities are not permitted in the natural catchment areas mentioned in Schedule 2 –
74 Jon Nevill, Director of Only One Planet, at http://www.onlyoneplanet.com.au/, ‘Freshwater protected areas in Australia: an overview’, March 2005. Jon Nevill has published extensively on freshwater management and wildlife management issues. This information was confirmed by an officer from the NSW Department of Environment and Conservation on 1 August 2005.
75 At http://www.nationalparks.nsw.gov.au/PDFs/pom_final_bluemountains.pdf.
76 See http://www.dms.dpc.vic.gov.au/Domino/Web_Notes/LDMS/PubLawToday.nsf/a12f6f60fbd56 800ca256de500201e54/85bb0c0ce78473a6ca256ede000b2f53/$FILE/92-36a010.pdf.
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• clearing native vegetation;
• harvesting timber and establishing plantations;
• mining and certain mineral exploration activities;
• extractive industries;
• construction of new water storages or water diversions;
• carrying out waterway management;
• making new roads and upgrades of existing roads;
• discharging effluent;
• introducing non-indigenous fauna and stocking the area with indigenous fauna apart from trying to conserve an ‘at risk’ species of indigenous fauna; and
• domestic grazing.
11.4 COMMONWEALTH
The important objective of conserving biodiversity is one of the objects enshrined in s 3 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Australian Network of Environmental Defender’s Offices argues that this objective could be met by the inclusion of a wild rivers trigger in the Act which would enable the Commonwealth Government to intervene to protect the relevant area.77
The work of the Australian Heritage Council on the Wild Rivers Project was noted earlier in this Brief. State Government agencies provided data for the Project which was eventually incorporated into a national Wild Rivers Database, now called the Australian River and Catchment Condition Database.78
11.5 INTERNATIONAL
On the international front, the Wild and Scenic Rivers Act has been in operation in the United States of America since 1968, following campaigns to ban the damming of several major rivers. The Canadian Heritage Rivers System commenced in
77 Australian Network of Environmental Defender’s Offices, Possible New Matters of National Environmental Significance under the EPBC Act 1999, Submission to the Review of Part 3 of the EPBC Act 1999, 2 May 2005, pp 38-39.
78 See further at http://www.heritage.gov.au/anlr/code/arc.html. Wild Rivers Bill 2005 (Qld) Page 37
Canada in 1984. Recently, the New Zealand Government began a Waters of National Importance Project which may result in a scheme to protect wild rivers.
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RECENT PARLIAMENTARY LIBRARY RESEARCH PUBLICATIONS 2005 RESEARCH BRIEFS RBR2005/01 Standards for Young Workers: The Industrial Relations (Minimum Employment Age) Feb 2005 Amendment Bill 2004 (Qld) RBR2005/02 Financial Literacy in Queensland: Bankruptcy Trends and Government Initiatives Feb 2005 RBR2005/03 Identity Fraud Feb 2005 RBR2005/04 Strengthening Child Pornography Laws: The Criminal Code (Child Pornography and Abuse) Feb 2005 Amendment Bill 2004 (Qld) RBR2005/05 Objectionable Behaviour by Neighbours: Amending the Residential Tenancies Act 1994 (Qld) to Feb 2005 Remove Problem Tenants RBR2005/06 Reform of Vagrancy Laws in Queensland: The Summary Offences Bill 2004 (Qld) Feb 2005 RBR2005/07 A Range of Amendments under the Police and Other Legislation Amendment Bill 2004 (Qld) Feb 2005 RBR2005/08 Building a bridge between university and employment: Work-integrated learning Mar 2005 RBR2005/09 Liquor Amendment Bill 2005 (Qld): A 3am ‘Lock Out’ for Brisbane’s Licensed Premises and Apr 2005 State-wide Restrictions on Alcohol Advertising RBR2005/10 Notifiable Conditions and Public Health Emergencies under the Public Health Bill 2005 (Qld) Apr 2005 RBR2005/11 Managing Jet skis under the Transport Infrastructure and Other Acts Amendment Bill 2005 May 2005 (Qld) RBR2005/12 Regulation of Councillor Behaviour and Local Government Complaint Processes under the May 2005 Local Government Legislation Amendment Bill 2005 (Qld) RBR2005/13 Lawyers’ Immunity May 2005 RBR2005/14 Uniform Defamation Laws June 2005
Research Papers are available as PDF files: • to members of the general public the full text of Research briefs is now available on the parliamentary web site, URL, http://www.parliament.qld.gov.au/Parlib/Publications/publications.htm http://www.parliament.qld.gov.au/Library/Query.exe – e-Documents & e-Articles – Quick display of Library’s research • publications
A Subject Index to Research Publications is available at the following site: http://www.parliament.qld.gov.au/Parlib/Publications/bysubject.htm Parliamentary Library - Research Publications & Resources Telephone (07) 3406 7108 Orders may be sent to Karen Sampford, [email protected]
This Publication:
RBR 2005/15 A Framework to Protect Wild Rivers in Queensland – The Wild Rivers Bill 2005 (Qld) (QPL, August 2005)
Related Publications:
RBR 2004/06 An End to Broadscale Clearing by 2005 under the Vegetation Management and Other Legislation Amendment Bill 2004 (Qld) (QPL, April 2004)
RBR 2003/06 Land Clearing Offences and the Natural Resources and Other Legislation Amendment Bill 2003 (Qld) (QPL, March 2003)
LB 12/00 Environmental Controls Over Mining: The Environment Protection and Other Legislation Amendment Bill 2000 (Qld) (QPL, November 2000)
LB 9/00 Water Allocation and Sustainable Water Management: Chapter 2 of the Water Bill 2000 (Qld) (QPL, August 2000)