The Wilderness Society’s Submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry: Wild Rivers (Environmental Management) Bill 2010 Massey Creek in the declared Stewart Basin Wild River Area. Photo: Glenn Walker April 2010 Wilderness Society Submission to the Senate Inquiry - Wild Rivers (Environmental Management) Bill April 2010 Executive Summary Freshwater ecosystems are under increasing ecological threat at both global and national scales. Many of Australia’s river systems are seriously degraded due to over-extraction, pollution, catchment modification and lack of effective river regulation, the most severe and prominent example being the Murray-Darling Basin. Science and logic tell us that we need to deal with rivers protection at the catchment/basin level rather than dealing with it partially or incrementally. The Queensland Wild Rivers Act was passed in 2005. It has been promoted and endorsed in three consecutive state elections, and has been through three sets of amendments, each involving Mr Noel Pearson and/or Cape York indigenous organisations including the Cape York Land Council and Balkanu Development Corporation, along with conservation groups, other Indigenous interests, and industry groups. These were designed to reach settlement on issues such as making development controls more flexible, and guarantees on Native Title rights explicit. Clear agreements were made by all parties consulted. This Bill seeks to undermine those processes. Queensland retains some of Australia’s last remaining free flowing rivers, located in five broad geographical regions. Queensland’s Wild Rivers initiative originates from the compelling need to preserve and protect these river systems. Wild River declarations prevent destructive developments like mega-dams, intensive irrigation, and mining occurring in sensitive riverine and wetlands environments. Without Wild Rivers protection, sensitive rivers and wetlands will be at risk of these and other damaging activities Considerable scientific and technical analysis is undertaken to inform the initial nomination process, and extensive consultations are required ahead of any final Wild River declaration.. Wild River declarations support sustainable development and sustainable economic opportunities (such as grazing, fishing, building infrastructure for tourism), they protect traditional activities and cultural practices, and allocate specific Indigenous water reserves (a first in Australia). A range of critiques have been leveled at Wild Rivers, including that it impinges on Native Title or broader property rights, that its processes fail to require Traditional Owner agreements for declarations, or is generally unnecessary. In general, these accusations are largely ill-informed and unsubstantiated, and do not stand up to serious and rigorous questioning. In some cases, the claims are correct but the need for change fails the test of reason or legal/policy consistency. Since the proclamation of the Wild Rivers Act 2005, there has been a great deal of misinformation and misreporting about how the initiative operates. There have also been a number of allegations leveled at The Wilderness Society in relation to our support for Wild Rivers. The claims that Wild Rivers prevents all development, stops cultural activities, is akin to a National Park, and “locks up” the land are all fallacious. Wild River declarations operate in a tenure-blind way, and the Wild Rivers Act explicitly states that Native Title rights are fully protected under declarations (Section 44, 2). It is necessary to highlight and address some of the alleged problems with Wild Rivers, which is what this Submission from The Wilderness Society seeks to do. Section 5 of this submission for example deals with the more substantive alleged problems with Wild Rivers, such as concerns about Native Title, Indigenous rights, and the United Nations Declaration on the Rights of Indigenous People. Other parts of this Submission examine the origins and need for the Wild Rivers initiative, how it operates in practice, and the range of issues and allegations made about it, as well as providing a serious critique of the Wild Rivers (Environmental Management) Bill 2010. 1 Wilderness Society Submission to the Senate Inquiry - Wild Rivers (Environmental Management) Bill April 2010 The vast majority of the claims against Wild Rivers have been made by Noel Pearson and his associated organisations, including the Balkanu Development Corporation and the Cape York Land Council. For this reason, many of the claims refer to Cape York. However, it must be remembered that Wild Rivers is not exclusively focused on Cape York or on Indigenous communities, it operates Statewide. Regrettably, little serious legal or policy analysis appears to have been conducted to substantiate claims about Wild Rivers, limiting the capacity to have informed and considered debate about some of the more substantive issues. Instead, Wild Rivers has been largely been discussed through polemic and hyperbole, and in the media rather than in public forums. Nevertheless, it is important for the Senate Committee and the broader community to understand the claims, and the false and misleading foundations on which they are based, as they provide the political and campaign context for the introduction of the Wild Rivers (Environmental Management) Bill 2010. Despite the claims that all the Bill does is give the right to Indigenous people to say no to Wild Rivers declarations, it is clear the intention of the Bill’s backers is to overturn the Wild Rivers Act. This leaves serious questions for Traditional Owners who want their rivers protected, as well as for the broader community who support environmental protection for rivers and associated landscapes and the State Government, which has a responsibility to protect the environment. The Wilderness Society believes that the Bill is ill-conceived, poorly constructed, politically motivated, and a threat to environmental protections and states’ rights. It seeks to provide a superficial and selective response to a complex set of issues associated with conservation outcomes and Indigenous rights, both of which deserve comprehensive policy analysis, considerable public debate, and serious legislative effort. Restricting the Wild Rivers Act has specific outcomes but it would also set a bad precedent for undermining progressive Indigenous conservation. There’s also the danger of incremental, unchecked and unregulated development which can occur in the absence of proper planning controls. If this Bill were to be legislated, Traditional Owners of one part of a river would have their support for river protection undermined or rendered pointless if other Indigenous groups upstream support destructive development can veto protection measures. Such a situation would cause serious harm to the river but damage the health and livelihoods of the Traditional Owners downstream. Effectively, it could lead to destructive development occurring in highly sensitive riverine environments, such as the Aurukun wetlands, which would once again be exposed to sand and bauxite mining threats if the Archer River Basin declaration. In conclusion, through the detailed content of this Submission, the Wilderness Society wishes to highlight the following key points: 1. The Wild Rivers Act enables a State environmental regulatory scheme. 2. The Wild Rivers Act and its Code are not contrary to the Native Title Act. 3. A Wild Rivers Act declaration has not been found to be contrary to the Native Title Act. 4. In either 2 or 3, if they were contrary, the matter could be tested in the courts, and in any event the Native Title Act would prevail, at least to the extent of any inconsistency. 5. Despite five years of operation of the Wild Rivers Act, it appears that Native Title is not infringed - indeed Wild Rivers is welcomed by some Traditional Owners. 2 Wilderness Society Submission to the Senate Inquiry - Wild Rivers (Environmental Management) Bill April 2010 6. Having failed to demonstrate a substantive or potential impact on Indigenous interests, the Bill seeks to encode a further ‘right’ in land and water ascribed to Traditional Owners, extending what is presently supported under Native Title law. 7. It does so on the basis of the Commonwealth’s ‘race’ powers and with vague reference to the UN Declaration on the Rights of Indigenous Peoples. 8. Its effect is a special measure designed to exempt Traditional Owners from environment regulation. 9. The Bill fails to define the Indigenous rights and interests it is seeking to protect. 10. The Bill fails completely to address the purpose of environmental regulation, despite this being in the title, and would result in the fragmentation of the wild rivers scheme and defeat its environmental purpose. 11. The Bill fails to analyse and reconcile the diverse rights and interests, both Indigenous and non-Indigenous, involved in the issues surrounding the Wild Rivers initiative.. 12. The Bill presupposes that a measure taken to protect and manage a Wild River can only be taken in the final decision by the Traditional Owners of country or their representatives, and therefore if agreement is not forthcoming the dec;aration is put aside. 13. By extension, this principle would apply to any environmental protection measure and could be further extended to apply to any Government policy of general application. 14. The Bill is manifestly deficient and unworkable, undemocratic, silent on the actual Indigenous rights