Proposed Wild Rivers Declarations
Legal
Proposed Wild Rivers Declarations
Submission by the Aboriginal and Torres Strait Islander Social Justice
Commissioner to the Minister for Natural Resources and Water
November 2008
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Table of Contents
- 1 Introduction
- 2 Summary
- 3 Recommendations
- 4 The Traditional Owners of the Archer, Lockhart and Stewart River Basins
- 5 Submission in relation to the Wild Rivers nominations of the Archer, Lockhart and Stewart Rivers
1 Introduction
- The Australian Human Rights Commission (the Commission) makes this
submission to the Minister for Natural Resources and Water for the proposed
Archer Basin Wild River Declaration, the Lockhart Basin Wild River Declaration
and the Stewart Basin Wild River Declaration.
2 Summary
- The Commission supports the Governments efforts to ensure the protection and
maintenance of specific rivers and their connected waterways In Queensland
through the Wild Rivers Act 2005 (Wild Rivers Act). - While this submission is related specifically to the proposed declarations
for the Archer, Lockhart and Stewart River Basins, this submission provides
discussion that will also be relevant to future declarations made under the Wild
Rivers Act. - The Commission notes that Indigenous peoples of the Archer, Lockhart and
Stewart River Basins disagree with the term ‘wild rivers’. They
argue that the term is culturally inappropriate and implies that the land and
waters in a proposed declaration were uninhabited and predominantly void of
human activity. The use of the term ‘wild’ does not equate with
Indigenous peoples’ perspectives and their continuing use of the rivers.
For the purposes of this submission, the Commission will refer to the
‘proposed wild rivers declarations’ as simply the ‘proposed
declarations’. - The Commission is concerned that declarations made over the rivers and their
interconnected waterways, may affect the exercise and enjoyment of Indigenous
peoples human rights, in particular, those related to the access, use and
occupancy, management and conservation, cultural and development rights to their
lands, waters and natural resources. - The Commission understands that the Indigenous peoples of the Archer,
Lockhart and Stewart River Basins generally agree with the prevention of surface
mining and intensive animal husbandry in proximity to a river, restrictions on
major water extraction and prevention of in-stream
dams.[1] However, the Commission also
acknowledges that traditional owners are concerned that the rivers are currently
inadequately managed and protected. - The Commission notes that the proposed declarations under the Wild Rivers
Act make provision for an Indigenous water reserve in accordance with s 27 of
the Cape York Peninsula Heritage Act 2007, for the purpose of helping
Indigenous communities in the area achieve their economic and social
aspirations.[2] - However, the Commission is concerned that the legislation and proposed
declarations do not consider the cultural value of the rivers and their
interconnected waterways to Indigenous peoples. The Commission is of the view
that the protection of wild rivers must include recognition of Aboriginal title
and the active participation of Traditional Owners and Indigenous communities. - The Commission is concerned about the increasing imposition of legislative
and policy arrangements on Indigenous peoples without providing adequate
information about the relationships and interaction between these arrangements.
The Commission is also concerned that without effective communication between
relevant departments responsible for implementation of government processes, the
rights of Indigenous peoples may be compromised.
3 Recommendations
- The Australian Human Rights Commission recommends that:
- proposed declarations are declared only on the basis that they address,
recognise and implement Indigenous cultural values in a substantial way. - all declarations be informed by the principles contained in the
International mechanisms and the research conducted by the Australian Government
on the provision of Indigenous peoples cultural values in
water. - prior to a declaration being made, traditional owners whose rights and
interests may be affected by a proposed declaration are provided complete and
clear information which outlines both the benefits and the extent to which their
rights will be restricted or impacted upon. - in accordance with section 17 of the Wild Rivers
Act,[3] no declarations be made that
impact upon Indigenous peoples’ rights and interests that are already
protected under the Aboriginal Land Act 1991, the Native Title Act
1993 (Cth), the Aboriginal Cultural Heritage Act 2003, and the Nature Conservation Act 1992 (Qld). - those rights and interests that have already been recognised or granted are
not limited by the implementation of the Wild Rivers Act and declarations made
in accordance with it. - in the implementation of the Wild Rivers Act and the development of any
proposed declaration, the Government ensures as a minimum standard:- the effective participation of Indigenous peoples in the development of
policies that affect Indigenous peoples’ lands and waters - the adoption of and compliance with the principle of free, prior, and
informed consent of Indigenous peoples for proposals on their lands and waters
- evidence based policy with built in evaluation
mechanisms
- that legislative developments do not remove or restrict existing rights
- non-discrimination and substantive equality.
- the effective participation of Indigenous peoples in the development of
- there be Indigenous involvement in the drafting and development of the
proposed declarations, and that the Government build strong partnerships with
Indigenous peoples for the joint management of the declared rivers. - the Government assure the long term resourcing for the management of Wild
Rivers. This must include funding for full time Indigenous rangers and
co-coordinators to manage the waters and lands, and also provide for the
necessary infrastructure, capacity building and training required to support the
management of the rivers. - the Government fully recognise the significance of the River Basins to the
Traditional Owners whose lands lie within the Archer, Stewart and Lockhart River
Basins. - the Government take this opportunity to incorporate Indigenous peoples
distinct rights to water, the environment, economic development and
participation and engagement into the proposed Archer, Stewart and Lockhart
River Basin declarations.
- proposed declarations are declared only on the basis that they address,
4 The
Traditional Owners of the Archer, Lockhart and Stewart River Basins
- Indigenous peoples are connected to and responsible for their traditional
land and waters and in turn Indigenous peoples obtain and maintain their
spiritual and cultural identity, life and livelihood from their lands and
waters. - The Archer, Lockhart and Stewart River Basins are home to a number of
Indigenous Traditional Owner groups including Northern and Southern Kannju, Wik
Mungkan, Apalach, Wintchnum, Olkola, Kuuku-Y’au, Umpila, Kuntanumpu,
Ultahganu, Lama Lama, Kuuku-Yani, Ayapathu and Umbindamu. - These traditional owner groups currently engage with a number of legislative
and policy arrangements, at the Commonwealth, State and local levels. These
arrangements include native title, land rights, and cultural heritage. - While these traditional owner groups are independently identified based on
their inherent cultural diversity and their traditions, sites, stories and
cultural practices; they all share similar concerns and aspirations relating to
the proposed declarations of rivers under the Wild Rivers Act. - The Indigenous peoples of the Archer, Lockhart and Stewart River Basins
possess distinct cultural and customary rights and responsibilities including: a
spiritual connection to the lands, waters and natural resources of the rivers;
management of significant sites located along the river banks, on and in the
river beds, and sites and stories associated with the water and natural
resources located in the rivers and their tributaries; protection of Indigenous
cultural heritage and knowledge; accessing cultural activities such as hunting
and fishing, and ceremony. - The Indigenous peoples of the Archer, Lockhart and Stewart River Basins have
an obligation under their traditional law and custom to protect, conserve, and
maintain the environment and the ecosystems in their natural state to ensure the
sustainability of the whole environment. - Historically Indigenous peoples have been excluded from water management.
There are low levels of awareness among Indigenous peoples of water institutions
and regulation.[4] Indigenous
Australians have had little to no involvement in state consultation processes
regarding water, including the development of Wild River policy and legislation.
This has resulted in a limited capacity to negotiate enforceable
rights[5] and means that there is the
potential for the rights of Indigenous people to be limited by the proposed
declarations. - The Commission is concerned about the impact of the declarations on
Indigenous peoples rights and interests particularly cultural values, land and
water management, and native title rights and interests. Additionally we are
concerned that the implementation of this legislation may limit the rights of
the Indigenous groups of the Archer, Lockhart and Stewart River Basins to
access, care for and manage their lands and waters, and their rights to use
their lands and water to achieve economic independence.
4.1 Indigenous
peoples’ human rights
- Indigenous peoples’ special connection to land and waters is protected
under international law which provides for the right to practice, revitalise,
teach and develop culture, customs and spiritual practices and to utilise
natural resources.[6] - Australia has ratified a number of international human rights instruments,
including the International Covenant on Civil and Political Rights (ICCPR), the
International Covenant on Economic, Social and Cultural Rights (ICESCR), and the
Convention of the Elimination of all forms of Racial Discrimination (CERD).
These create an obligation to ensure the full and equal enjoyment and exercise
of these human rights for its citizens, including Indigenous
peoples.[7] - The Committee on the Elimination of Racial Discrimination has, for example,
highlighted that the obligation to not discriminate on the basis of race
requires that governments:- Provide indigenous peoples with conditions allowing for a sustainable
economic and social development compatible with their cultural characteristics; - Ensure that members of indigenous peoples have equal rights in respect of
effective participation in public life and that no decisions directly relating
to their rights and interests are taken without their informed consent; - Ensure that indigenous communities can exercise their rights to practise and
revitalize their cultural traditions and customs and to preserve and to practise
their languages;[8] and - recognize and protect the rights of indigenous peoples to own, develop,
control and use their communal lands, territories and resources... [9]
- Provide indigenous peoples with conditions allowing for a sustainable
- In addition, as Indigenous peoples, the traditional owners of the Archer,
Lockhart and Stewart River Basins hold a special status as the first peoples of
the lands and waters. As such, they possess a number of distinct rights that
relate to their lands, waters, and natural resources; self determination; and
engagement and participation in government processes that directly or indirectly
impact on their lives. - The following internationally recognised rights are particularly relevant to
Indigenous peoples and the proposed Archer, Lockhart and Stewart River Basin
declarations under the Wild Rivers Act:
- The right to water is a human right that is protected in a wide range of
international instruments, including the ICESCR, ICCPR and the Declaration on
the Rights of Indigenous
Peoples.[10] The ICESCR provides an
implicit right to water, recognising that it contributes to achieving an
adequate standard of living and the right to enjoyment of the highest attainable
standard of physical and mental health. The ICESCR and the ICCPR also recognises
people’s right to freely dispose of their own natural resources where in
no case can ‘a people be deprived of its own means of subsistence.’
‘The human right to water entitles everyone to sufficient,
safe, acceptable, physically accessible and affordable water for personal and
domestic uses.’[11] There is
a fundamental link between accessing water and living in dignity which means
that the human right to water is receiving increased attention and recognition
both in Australia and worldwide.[12] The right to water is linked to many other rights including the right to food,
the right to health and the right to take part in cultural
life.[13]The Declaration on the Rights of Indigenous Peoples further supports
Indigenous people’s rights to access, conservation and economic
development of water. It provides that Indigenous peoples have a right to
maintain and strengthen the distinctive Indigenous spiritual relationship with
‘traditionally owned or otherwise occupied and used lands, territories,
waters and coastal seas.’ It also provides that Indigenous peoples have
the right to conservation and protection of Indigenous lands and resources with
state assistance and the right to development for all Indigenous lands and
resources including water.
(b) Cultural rights and
the cultural use of water
- Indigenous peoples’ special spiritual and cultural relationships with
water are holistic; combining land, water, culture, society and economy.
Consequently water, land rights and native title are inseparable. - Indigenous peoples’ right to fully enjoy their culture and to take
part in cultural life is recognised in several international instruments as
discussed above. - The United Nations Declaration on the Rights of Indigenous Peoples provides
that Indigenous peoples have a right to maintain and strengthen the distinctive
Indigenous spiritual relationship with ‘traditionally owned or otherwise
occupied and used lands, territories, waters and coastal
seas.’[14] - Not only is water significant to the spiritual values of Indigenous peoples,
water is vital for cultural and economic development. It is not possible to
separate water from Indigenous culture and it is also not possible to separate
cultural and spiritual water rights from economic
development.[15] However in general,
Indigenous water rights have been allocated through a narrow cultural or social
lens with other rights such as economic and environmental water rights being
excluded. - Indigenous peoples in other parts of the country have identified that the
difference between environmental and cultural water is that it must be the
Indigenous peoples themselves deciding where and when water should be delivered
based on traditional knowledge and their aspirations. This ensures Indigenous
peoples are empowered to fulfil their responsibilities to care for
country.[16] - The impacts and benefits of cultural water to Indigenous peoples
include:- empowerment and social justice - water is being delivered to country by the
peoples - growing native plants
- protecting and hunting animals
- song, dance, art and ceremony
- spiritual sites
- improved cultural-economic and health outcome through the provision of food,
medicines and materials for
art.[17]
- empowerment and social justice - water is being delivered to country by the
(c)
The right to a healthy environment
- Environmental rights include the rights of access to the unspoiled natural
resources that enable survival such as land, shelter, food, water and air; the
right to refuse development; and specific environment-related rights of
Indigenous peoples. - Environmental rights are provided for by international instruments including
the Convention on Biological
Diversity[18], the Rio
Declaration[19] and Agenda
21[20]. - The Rio Declaration recognises the vital role of Indigenous
communities’ knowledge and traditional practices in environmental
management. - Agenda 21 is a comprehensive plan of action to be taken globally, nationally
and locally by organisations of the United Nations, governments, and major
groups in every area where there are human impacts on the environment. It
provides for the protection and management of freshwater resources recognising
the effects that climate change will have on water and Indigenous
peoples.[21] Agenda 21 identifies
the need to engage Indigenous people in water management policy-making and
decision-making; improve Indigenous technologies to fully utilise limited water
resources and to safeguard those resources against pollution; recognise the
interconnection between economic development and access and supply of
water.[22] - The Convention on Biological Diversity’s objective is to sustain all
life on earth, including aquatic ecosystems, with the global goal to reverse and
stop the loss of biodiversity. The Convention on Biological Diversity provides
for the respect, preservation and maintenance of knowledge, innovations and
practices of Indigenous and local communities relevant for the conservation and
sustainable use of biological diversity. [23] Many of the decisions of the COP
call for the full and effective participation of Indigenous communities in order
to achieve the global goal. [24]
(d) A right to economic
development
- The ICESCR and the Declaration on the Rights of Indigenous Peoples provide
for Indigenous peoples to access and use their lands, waters and natural
resources for economic development and building sustainable communities. - The United Nations Declaration on the Rights of Indigenous Peoples supports
Indigenous economic development through the use of water resources. In
particular it provides that Indigenous peoples have the right to determine and
develop priorities and strategies for the development or use of their lands or
territories and our resources. It states that:States shall consult
and cooperate in good faith with the Indigenous peoples concerned through their
own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or
territories and other resources, particularly in connection with the
development, utilisation or exploitation of mineral, water, or other
resources.[25]
5 Submission in relation
to the Wild Rivers nominations of the Archer, Lockhart and Stewart Rivers
- The Commission’s particular concerns with the proposed declarations
are addressed below. The Commission notes that these concerns also relate to the
implementation of the Wild Rivers Act generally.
5.1 Cultural values
of the Archer, Lockhart and Stewart River Basins
- Indigenous barrister Anthony McAvoy argues that to date ‘there is no
place in modern river management systems for the protection of Indigenous
spiritual values.’[26] This
special ancient and ongoing spiritual and cultural connection to water has in
most cases been ignored by non-Indigenous water laws. - Cultural water use is part of Indigenous law and there are potential risks
to Indigenous cultural and spiritual values when water is used for
non-Indigenous economic, development, recreational or domestic purposes.
According to Indigenous law water places have special spiritual significance and
accompanying cultural responsibilities. - The stated purpose of the Wild Rivers Act 2005 is ‘to preserve
the natural values of rivers that have all, or almost all, of their natural
values intact.’[27] - The Commission acknowledges that it is extremely important to recognise and
protect the natural values of the rivers. The Commission is concerned that the
proposed declarations under the Wild Rivers Act do not adequately recognise the
Indigenous cultural values in the Archer, Lockhart and Stewart River Basins and
do not give any indication of how these are to be managed. - The long-term Indigenous occupation and management of lands and waters
within the Archer, Lockhart and Stewart River Basins has resulted in significant
cultural value to the Indigenous peoples of those lands and waters, and that
those cultural values form part of the natural value of the rivers and their
interconnected waterways. - The Commission argues that any declarations made under the Wild Rivers Act
must be developed and implemented in accordance with the Nature Conservation Act
which provides that management principles of national parks must be managed to
provide, to the greatest possible extent, for the permanent preservation of the
area’s natural condition and the protection and presentation of the
area’s cultural resources and
values.[28] - The Commission recommends that Indigenous cultural values must be
considered by the Act and addressed in declarations, and must not be regarded as
mutually exclusive to the natural values as outlined in the proposed
declarations. - The Commission is concerned that the Wild Rivers legislation will impact
upon Indigenous peoples rights to enjoy and practice a living and ongoing
culture especially as many important cultural sites are situated in or in near
proximity of the rivers. For example elders across the region have voiced their
concerns in various consultations that their burial, birth and other culturally
and spiritually important sites located on the rivers will not be protected by
the declarations. - One way in which the cultural values of Indigenous peoples may be
acknowledged is through formal recognition given to the particular traditional
owner groups whose land and waters lie within the specific proposed declaration
areas, by naming them and providing information about the cultural value of the
declared area in the declaration. - The Australian Government recently conducted a research project with the
Anmatyerr people in the Northern Territory which consider the provision for
cultural values in water
management.[29] They identified five
overarching categories or key elements of cultural water values:- Law
- Responsibilities and Protocols
- Economies, Environment and Education
- Recreation and Well Being
- History of People and Place
The project also
identified five overarching ways to provide for these values:
- Water Allocation
- Use of Indigenous Names and Protocols
- Access, Land Management and Co-existence
- Livelihoods and Skills Exchange
- Governance and
Participation.[30]
- The Commission recommends that proposed declarations are declared
only on the basis that they address, recognise and implement Indigenous cultural
values in a substantial way. - The Commission further recommends that all declarations be informed
by the relevant principles contained in International mechanisms and the
research conducted by the Australian Government on the provision of Indigenous
peoples cultural values in water.
5.2 Proposed
Declarations under the Wild Rivers Act 2005
(a) Relationship with
other Acts
- The Commission notes that the proposed rivers are located on lands and
waters where there are significant Indigenous interests across a variety of
tenure arrangements including, native title, land rights, national parks, and
Indigenous freehold. - The Commission is concerned that Indigenous peoples are being forced to
engage with a number of legislative arrangements, many of which are extremely
complex. This is compounded by the overlap with other state and commonwealth
legislative and policy areas. - The Commission is concerned about the impact of the proposed declarations
under the Wild Rivers Act on the capacity for Indigenous peoples to fully
exercise and enjoy their rights to their lands and waters obtained through the Native Title Act 1993 (Cth), and the Cape York Peninsula Heritage Act
2007, Aboriginal Cultural Heritage Act 2003, Aboriginal Land Act
1991, the Nature Conservation Act 1992 (Qld), and other relevant
legislative and policy arrangements.
(i) Cape York Peninsula
Heritage Act 2007
- In particular, the Commission is concerned that the relationship between the
Wild Rivers Act and the Cape York Peninsula Heritage Act is unclear. - The Cape York Peninsula Heritage Act 2007 provides for the joint
management of national parks. Joint management arrangements are negotiated
through an Indigenous Management Agreement (IMA). Traditional owners of Archer,
Stewart River Basins, have either completed or are currently negotiating IMAs
under the Cape York Peninsula Heritage Act. IMAs outline the cultural, social,
economic and environmental activities that traditional owners seek to undertake
on lands that have been declared National Parks. However, there are significant
concerns that these activities will be restricted by the proposed declarations
under the Wild Rivers Act. - The Queensland Government assert that a declaration under the Wild Rivers
Act may affect the management plan (or IMA) for a national park within the
proposed area. The Wild Rivers Act provides that a park’s management plan
must be consistent with the declaration or provide a greater level of protection
for the area. - Legislation governing National Parks already provides a high level of
protection and conservation of the natural values over the lands and waters
within the park boundaries. National Parks could be exempted from the proposed
declaration areas. - The Queensland Government assert that a declaration under the Wild Rivers
Act will have no impact on traditional owners’ participation in the
development of national park management
plans.[31] - However, the Commission is concerned that where joint management applies and
IMA’s and proposed declarations are being developed without an integrated
cooperative process, Indigenous stakeholders are not receiving adequate advice
as to whether the agreements they are entering into are in accordance with all
relevant legislation. This may result in inconsistency between the declaration
and the IMA, making the IMA partially invalid. - As there is no guidance in the Wild Rivers Act 2005 of the
interaction of the Wild River Act with National Parks or IMAs, the Commission is
concerned that a declaration may reduce the capacity of Indigenous peoples to
fully realise their rights and obligations under these agreements. - The Commission recommends that prior to a declaration being made,
traditional owners whose rights and interests may be affected by a proposed
declaration are provided complete and clear information which outlines both the
opportunities and the extent to which their rights will be restricted or
impacted upon. - The Commission acknowledges that the Cape York Peninsula Heritage Act
2007 provides for an Indigenous water reserve or allocation in each proposed
declaration. This allocation is made for the purpose of helping Indigenous
communities in the area achieve their economic and social
aspirations.[32] - The Commission also acknowledges that for the proposed declarations for the
Stewart and Lockhart River Basins, the waters allocated to the Indigenous
reserve are significantly higher than water allocated to the general and
strategic reserves. The proposed declaration for the Archer River Basin also
provides for a large allocation to the Indigenous reserve, which is equal to
that allocated for the strategic reserve. - While unallocated waters in the general reserve may be made available for
any purpose, waters in the Indigenous reserve that remain unallocated, are held
specifically as Indigenous reserve for the purpose of helping Indigenous
communities in the wild river area achieve their economic and social
aspirations.[33] - The Commission supports this as an important factor in maintaining the
capacity for Indigenous peoples to realise and address their aspirations and
their cultural obligations to their lands and waters. - In addition, unallocated waters in the general and strategic
reserves[34] should also be made
available to Indigenous people who are parties to IMA’s to undertake joint
management responsibilities directly related to managing the environment and the
national parks, and where Indigenous peoples are undertaking ecotourism
activities as provided for at Division 5, clause 17 of the proposed declarations
of the Archer, Stewart and Lockhart River Basins. Water allocations in the
Indigenous reserve should not be utilised for purposes already provided for in
the strategic or general reserves.
(ii) Native Title, Land
Rights and Cultural Heritage legislation
- The Commission notes that Indigenous peoples are concerned about the impact
of the Wild Rivers Declarations on their native title rights and
interests.[35] - The Commission notes that section 44 of the Wild Rivers Act seeks to provide
some protection of native title rights. It provides, in effect, that a wild
rivers declaration or a wild rivers code, can not have the direct or indirect
effect of limiting a person's right to the exercise or enjoyment of native title
in as far as it prohibits or regulates the carrying out of activities and the
taking of natural resources in a wild river area. - The State Government have advised that a declaration will not affect a
native title claim process, the cultural heritage in a declared area, or the
functioning of the Aboriginal Cultural Heritage Act
2003.[36] In particular, they
assert that a declaration will not regulate or does not restrict traditional
Indigenous activities such as camping, fishing, hunting and conducting
traditional ceremonies and fire management, gathering plant materials and plant
products, ochre and timber for traditional activities. However, there may be
requirements under other Acts, such as the Vegetation Management
Act. - The Commission recommends that in accordance with section 17 of the
Wild Rivers Act[37], no declarations
be made that impact upon Indigenous peoples’ rights and interests that are
already protected under the Aboriginal Land Act 1991, the Native Title
Act 1993 (Cth), the Aboriginal Cultural Heritage Act 2003, and the Nature Conservation Act 1992 (Qld). - Additionally the Commission recommends that those rights and
interests that have already been recognised or granted are not limited by the
implementation of the Wild Rivers Act and declarations made in accordance with
it. This is specifically relevant to the protection of development aspirations
on Indigenous lands and waters that have not yet commenced. Additionally, future
rights and interests under the above acts must be afforded full
protection.
(iii) Racial
Discrimination Act 1975 (Cth)
- The Queensland government should give very careful consideration to whether
the proposed declarations may be invalid by operation of section 10 of the Racial Discrimination Act 1975 (Cth) (RDA). Such invalidity is raised by
the significant potential of the declarations to impact upon a range of rights
of Indigenous people. - Section 10 of the RDA is concerned with ensuring the equal enjoyment of
rights of all persons under
law.[38] It provides, relevantly:10 Rights to equality before the
law(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a
State or Territory, persons of a particular race, colour or national or ethnic
origin do not enjoy a right that is enjoyed by persons of another race, colour
or national or ethnic origin, or enjoy a right to a more limited extent than
persons of another race, colour or national or ethnic origin, then,
notwithstanding anything in that law, persons of the first-mentioned race,
colour or national or ethnic origin shall, by force of this section, enjoy that
right to the same extent as persons of that other race, colour or national or
ethnic origin.(2) A reference in subsection (1) to a right includes a reference to a right
of a kind referred to in Article 5 of the
Convention.[39] - The Full Federal Court in Bropho v Western
Australia (‘Brohpo’)[40] summarised the operation of s 10(1) in the following way:[Section]
10(1) of the [RDA] is engaged where there is unequal enjoyment of rights between
racial or ethnic groups: see Ward v Western Australia (2002) 213 CLR 1.
Section 10(1) does not require the Court to ascertain whether the cessation of
rights is by reason of race, with the clear words of s 10 demonstrating that the
inquiry is whether the cessation of rights is 'by reason of' the legislation
under challenge. Further, s 10 operates, not merely on the intention, purpose or
form of legislation but also on the practical operation and effect of
legislation (Gerhardy v Brown, at 99; Mabo v Queensland
[No 1] (1988) 166 CLR 186 at 230-231; Western Australia v Ward at 103).[41] - These submissions have highlighted the potential for the proposed
declarations to impact disproportionately upon a range of rights of Indigenous
people. These human rights include, but are not limited to, property rights. - The RDA has been held, in a number of cases, to protect Indigenous property
rights, most obviously native title rights (which are also given some protection
by s 44 of the Wild Rivers Act, as noted
above).[42] However, the Commission
notes that the types of property rights protected by the RDA should be
considered very broadly. In Bropho, the Full Federal Court held
that the property rights protected by s 10(1) are not limited to rights of
‘ownership of a kind analogous to forms of property which have been
inherited and adapted from the English system of property law or conferred by
statute’.[43] In that case,
the relevant property rights considered by the Court included the rights of
Indigenous residents of a government reserve to manage the land. - The Commission notes that in Bropho, the Full Federal Court held
that there will not be a breach of the RDA if rights are limited
‘in order to achieve a legitimate and non-discriminatory public
goal’.[44] In determining what
will constitute a ‘legitimate’ interference with rights, the
following principles are relevant. - First, when determining the legitimacy of a limitation of a right, the
assessment is an objective one – it is not sufficient, for example, that
the parliament lacked a discriminatory motive or intention. - Second, proportionality will be a vital factor in making assessments of what
is ‘legitimate’ – a measure will not be legitimate if its
impact upon rights is disproportionate to the claimed purpose or benefit of the
measure. In the present case, it is particularly relevant to ask whether the
proposed declarations can reasonably be said to involve the least possible
interference with the various rights of Indigenous people that are impacted upon
by the proposed declarations.
5.3 Effective
engagement and participation with Indigenous peoples
- Whilst the Government and the Minister have noted that ‘in particular
the legitimate interest of traditional owners will be recognised and taken into
account’[45] when declaring
rivers and their interconnected waterways, there is little acknowledgement of
the ongoing land and water management undertaken by Traditional Owners for
thousands of years. - All rights to the use, flow and control of all water in Queensland are
currently vested in the State[46] who also have responsibility for the management of water. - Traditional Owners of the Archer, Stewart and Lockhart River Basins have
voiced their concerns that the rivers have not been adequately managed by the
Government. This is evidenced by the visible impacts of feral animals and weeds
and commercial fishing in the Archer River. - As identified by the Wilderness Society, the government has a positive
responsibility in natural resource management to protect Indigenous access and
incorporate Indigenous values into
management[47]. - In accordance with human rights principles, Indigenous peoples must be
actively engaged in all levels of management and decision-making that directly
or indirectly impacts their livelihoods. Effective participation in decision
making is essential to ensuring non-discriminatory treatment and equality before
the law - Article 32 of the Declaration on the Rights of Indigenous Peoples specifies
that:- Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources. - States shall consult and cooperate in good faith with the Indigenous peoples
concerned through their own representative institutions in order to obtain their
free and informed consent prior to the approval of any project affecting their
lands or territories and other resources, particularly in connection with the
development, utilisation or exploitation of mineral, water, or other
resources. - States shall provide effective mechanisms for just and fair redress for any
such activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact. [48]
- Indigenous peoples have the right to determine and develop priorities and
(a) Full free prior and
informed consent
- The Commission notes that the Wild Rivers Act and the proposed declarations
provides for community consultation about the proposed declarations or
revocations made in accordance with the
Act.[49] - Section 13(1)(a) of the Wild Rivers Act states that the Minister must
consider the results of community consultation on the declaration proposal and
submissions made. - The Commission is concerned that the discretion that the Minister has to
declare or revoke a declaration of a river, is based only on consultation and
does not require the free prior and informed consent of the traditional
owners. - Free, prior and informed consent is an internationally recognised principle
applied to the development of legislative and policy frameworks that affect
Indigenous peoples’ rights to enjoy their land. [50] Free, prior and informed consent is
more than consultation and participation. While consultation provides for the
exchange and sharing of information, devoid of a decision-making role, consent
means to permit, approve, or agree. - This principle applies not only to administrative acts and decisions about
land use, but also to the legislative process itself. - The principle of free, prior and informed consent requires:
- no coercion or manipulation used to gain consent
- consent must be sought well in advance of authorisation by the State or
third parties for activities to commence, or legislation to be implemented that
affects the rights of Indigenous peoples - full and legally accurate disclosure of information relating to the proposal
is provided in a form that is understandable and accessible for communities and
affected peoples - communities and affected peoples have meaningful participation in all
aspects of assessment, planning, implementation, monitoring and closure of a
project - communities and affected peoples are able to secure the services of
advisers, including legal counsel of their choice and have adequate time to make
decisions - consent applies to a specific set of circumstances or proposal, if there are
any changes to this proposal or to the circumstances this will renew the
requirement for free, prior, and informed consent - consent includes the right to withhold consent and say no to a
proposal.
- no coercion or manipulation used to gain consent
- Free, prior and informed consent secures the rights of Indigenous peoples to
control access to their land, share the benefits resulting from the use of the
land and procure compensation for the loss of resources. [51] - The United Nations Commission on Human Rights provides that:
Free, prior and informed consent recognises Indigenous
peoples’ inherent and prior rights to their lands and resources and
respects their legitimate authority to require that third parties enter into an
equal and respectful relationship with them, based on the principle of informed
consent’.[52] - In order for the requirement of informed consent to be achieved, Indigenous
peoples must be fully engaged as equal stakeholders. This means that they must
be fully apprised of the benefits and the costs resulting from legislative and
policy developments, or negotiated agreements. This requires access to
information and advice that is understandable and accessible for communities and
affected peoples. - For example, the Commission is concerned that despite the intention to
preserve the natural values of rivers in the Archer Basin, the proposed Archer
River Basin declaration does not mention the exceptions afforded to the Aurukun
Bauxite Project. It would be difficult for Indigenous and other interest groups
to effectively engage in the consultation process and give their free, prior and
informed consent, when the traditional owners groups may be unaware of the
relative disadvantages in the proposed declarations. - The Commission recommends that in the implementation of the Wild
Rivers Act and the development of any proposed declaration in accordance with
the Act, the State ensures as a minimum standard:- the effective participation of Indigenous peoples in the development of
policies that affect Indigenous peoples’ lands and waters - the adoption and compliance with the principle of free, prior, and informed
consent for proposals on our lands and waters - evidence based policy with built in evaluation
mechanisms - that legislative developments do not remove or restrict existing rights
- non-discrimination and substantive equality.
- the effective participation of Indigenous peoples in the development of
- The Commission further recommends that there be Indigenous
involvement in the drafting and development of the proposed declarations made in
accordance with the Act, and that the State build strong partnerships with
Indigenous peoples for the joint management of the declared rivers.
5.4 Economic
Development
- The Commission is concerned that some aspects of the proposed declarations
under the Wild Rivers Act may limit the rights of the traditional owners of the
Archer, Lockhart and Stewart River Basins to economic development. - In particular, the Commission is concerned that proposed declarations have
the potential to limit opportunities available to Indigenous people to develop
sustainable local and regional economies based on the resources (including the
cultural resources) of the lands and waterways. Consequently Indigenous
peoples’ right to self-determination may be undermined. - For example, the Commission is concerned that while proposed declarations in
the Archer Basin may disadvantage Indigenous communities by effectively
prohibiting various opportunities to develop land in the proposed preservation
areas such as agriculture, and surface mining, it may allow for damaging,
large-scale mining activities to continue. - The Commission notes that further provisions or exemptions may be required
to strengthen the ability of Indigenous peoples to protect their economic rights
derived from their lands, waters, and natural resources; and to conduct
activities that ensure their development aspirations are fulfilled within the
Archer, Lockhart and Stewart River Basins. - The Commission notes that of the overall commitment of the State to employ
100 Indigenous Wild Rivers Rangers, to date only 20 Indigenous rangers have been
employed in Wild Rivers Areas across the Gulf and Cape regions. The Commission
also acknowledges that the target of 100 Rangers is a longer-term goal. The
Government have provided $2.8 million in the 2008/09 State budget for this
purpose.[53] - The Commission recommends the Government assure the long term
resourcing for the management of Wild Rivers. This must include funding for full
time Indigenous rangers and co-ordinators to manage the waters and lands, and
also provide for the necessary infrastructure, capacity building and training
required to support the management of the rivers. - The Commission has a number of concerns related to the prohibition of
certain activities under the proposed declarations and in accordance with the
Wild Rivers Code. This includes:
- The Commission is concerned that the prohibition on new aquaculture
development[54] in high preservation
areas will impact upon Indigenous peoples’ right to economic development
in their waters. - The prohibition on aquaculture in the Lockhart River Basin might stifle
potential economic opportunities available in the cultivation of live fisheries
resources, particularly for Indigenous peoples whose country is in estuaries and
river mouths.
- The Commission is concerned that the requirements in the declarations for
vegetation clearing in a high preservation area may impact upon Indigenous
peoples’ right to economic development. In particular, this provision
relates to the requirement for a
permit[55] to clear vegetation in
both high preservation areas and preservation areas. The Commission is concerned
that this might place substantial restrictions on clearing vegetation to build
tourism infrastructure, outstations, and for agriculture and cultural purposes. - The Commission notes that there is currently uncertainty about the
commercial harvesting of vegetation in a high preservation area (such as river
reeds at Aurukun) for the use in traditional art and craft or to produce goods
for sale. - The Commission submits that there should not be unnecessary limitations on
harvesting and clearing of vegetation for traditional owners. The use of
vegetation such as reeds in art and craft are traditional activities, recognised
as a native title right and interest and offers potential economic development
opportunities.
- While it is permissible for Indigenous peoples to grow agricultural produce
in high preservation areas for personal consumption, growing agricultural
produce in market gardens in high preservation areas for sale in local
communities and stores requires a development
application[56]. - This places undue restrictions on small-scale commercial agriculture that is
similar to domestic agriculture for personal consumption. The Commission is
concerned that the relationship between the sale of produce resulting from a
market garden and the protection of the rivers natural values is not clear. The
Commission is also concerned that this will impede Indigenous rights to
sustainable economic development opportunities in their lands and
waters.
(d) Specified works such
as boat ramps and jetties
- Part 3 of the Wild River Code allows for boat ramps and jetties for public
use[57] to be assessable as
development, and for which a development application can be made in high
preservation areas. This implies that there is a prohibition or a more onerous
process involved in building private boat ramps and jetties. This has the
potential to impede upon Indigenous peoples’ opportunities to engage in
tourism activities, to transport agricultural produce, and to access their
homelands. This will be particularly relevant during the wet season where the
only mode of transport in many of the regions covered by the proposed
declarations is by boat due to flooding. - Additionally, the Commission is concerned that as provision is made only for
the public use boat ramps and jetties, it might not be an acceptable to
Indigenous peoples whose lands are on Indigenous freehold and should not be
publicly accessible without the traditional owners’ permission. - Finally, the Commission recommends that the Government fully
recognise the significance of the River Basins to the Traditional Owners whose
lands lie within the Archer, Stewart and Lockhart River Basins. The Commission
also recommends that the government take this opportunity to incorporate
Indigenous peoples distinct rights to water, the environment, economic
development and participation and engagement into the proposed Archer, Stewart
and Lockhart River Basin declarations.
[1] Balkanu Aboriginal Development
Corporation, Telephone Communication with Terry Piper, 17 November
2008.
[2] Wild Rivers Act 2005, s 27(2)
[3] Wild Rivers Act
2005, s 17, validates carrying out existing activities and the taking of natural
resources that are authorised or permitted by a licence, permit, or approval
document held by the person under another Act or
law.
[4] S Jackson, (CSIRO), Indigenous Interests and the National Water Initiative Water Management,
Reform and Implementation Background Paper and Literature Review, (2007), pp
65-6. At http://www.nailsma.org.au/nailsma/publications/downloads/NAILSMA_NWI_Review_UPDATEDec07.pdf (viewed 26 July 2008).
[5] M
Durette, Indigenous Legal Rights to Freshwater: Australia in the
International Context, (2008) Centre for Aboriginal Economic Policy Research
Working Paper No. 42/2008, p vii. At http://www.anu.edu.au/caepr/Publications/WP/CAEPRWP42.pdf (viewed 28 August 2008).
[6] See
International Covenant on Civil and Political Rights, arts 1, 27; International
Covenant on Economic, Social and Cultural Rights, arts 1,15; Declaration on the
Rights of Indigenous Peoples, arts 11-13,
26-31.
[7] While a breach of these
obligations is ultimately the responsibility of the Commonwealth government,
being the government that has the international legal personality to enter into
treaty obligations, it is clear that the laws of state and territory governments
can put Australia in breach of those obligations: see art 50 of the ICCPR and
art 28 of the ICESCR. It may be noted that the Australian Government can seek to
protect against breaches of human rights obligations by legislating to override
state laws: see, for example, Commonwealth v Tasmania (1983) 158 CLR
1.
[8] United Nations Committee on
the Elimination of Racial Discrimination, General Comment 23: Indigenous
Peoples, UN Doc: A/52/18, annex V, 18 August 1997, para
4.
[9] United Nations Committee on
the Elimination of Racial Discrimination, General Comment 23: Indigenous
Peoples, UN Doc: A/52/18, annex V, 18 August 1997, para
5.
[10] Office of the United
Nations High Commissioner for Human Rights, Right to Water. At http://www.unhchr.ch/html/menu2/6/water/index.htm,
(viewed 3 October 2008).
[11] Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in
the Implementation of the International Covenant on Economic, Social and
Cultural Rights, General Comment No. 15 (2002) The right to water (arts. 11 and
12 of the International Covenant on Economic, Social and Cultural Rights)
(2002). At: http://daccessdds.un.org/doc/UNDOC/GEN/G03/402/29/PDF/G0340229.pdf?OpenElement (viewed 9 October 2008). See also Substantive Issues arising in the
implementation of the International Covenant on Economic, Social and Cultural
Rights General Comment No. 14 (2000). The right to the highest attainable
standard of health (article 12 of the International Covenant on Economic, Social
and Cultural Rights). At http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?OpenDocument (viewed 9 October 2008).
[12] Office of the United Nations High Commissioner for Human Rights, Right to
Water. At http://www.unhchr.ch/html/menu2/6/water/index.htm (viewed 3 October 2008). See also J Gray and J Nolan, Editorial, (2008) Human
Rights Defender, 17 (1) 1, p 1.
[13] Office of the United
Nations High Commissioner for Human Rights, Right to Water. At http://www.unhchr.ch/html/menu2/6/water/index.htm (viewed 3 October 2008).
[14] United Nations Declaration on the Rights of Indigenous Peoples, Arts 25.
[15] As identified in Agenda 21
access to and supply of water is vital to economic development Agenda 21,
Chapter 18.6. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm (viewed 8 October 2008).
[16] Murray Lower Darling Rivers Indigenous Nations, Cultural Flows, undated.
[17] Murray Lower
Darling Rivers Indigenous Nations, Cultural Flows, undated.
[18] Australia
ratified the Convention on Biological Diversity in June 1993. The Convention
came into force in December
1993.
[19] Australia was one of
the 178 countries participating in the UN sponsored conference on Environment
and Development held in Rio de Janeiro in 1992. That conference formulated the
Rio Declaration on Environment and Development, a statement of 27 principles
directed towards promoting sustainable development, including the protection of
the environment. At http://www.aph.gov.au/library/pubs/RN/1997-98/98rn04.htm,
(viewed 25 November 2008).
[20] Agenda 21 was adopted by more than 178 Governments, including Australia,
at the UN Conference on Environment and Development in 1992. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).
[21] Agenda 21, Chapters 18 and 26. Chapter 26 specifically relates to
recognising and strengthening the role of Indigenous People and their
Communities. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).
[22] Agenda 21, Chapter 18. At http://www.un.org/esa/sustdev/documents/agenda21/index.htm,
(viewed 4 November 2008).
[23] Convention on Biological Diversity, Art 8(j).
[24] See for example Conference
of the Parties to the Biodiversity Convention, Marine and coastal biological
diversity, COP 9 Decision IX/20, Bonn, 19 - 30 May 2008. At http://www.cbd.int/decisions/?m=COP-09&id=11663&lg=0 (viewed1 September 2008).
[25] United Nations Declaration on the Rights of Indigenous Peoples, Arts 32.
[26] K Barber and H Rumley, Gunanurang: (Kununurra) Big River: Aboriginal Cultural Values of the Ord
River and Wetlands, A study and report prepared for the Waters and Rivers
Commission WA, (2003), p14. At http://portal.water.wa.gov.au/portal/page/portal/WaterManagement/Groundwater/Ord/Content/ABORIGINAL_VALUES.pdf (viewed 10 September 2008).
[27] Wild Rivers Act 2005, s 3.
[28] Nature Conservation Act,
1992 (Qld), s
[29] Dr N Rea and
the Anmatyerr Water Project Team, Provision for Cultural Values in Water
Management: The Anmatyerr Story, Land & Water Australia Final Report,
(2008). At http://products.lwa.gov.au/products/PR081464 (viewed10 September 2008).
[30] Australian Government, Land and Water Australia, Provision for Cultural
Values in Water Management: The Anmatyerr Story. At http://sirp.gov.au/Research/The_Provision_for_Cultural_Values_in_Water_Management_The_Anmatyerr_Story/indexdl_8963.aspx.
(viewed, 19 November 2008).
[31] Department of Natural resources and Water, Wild Rivers Draft Indigenous
summary guide, p 4. At
http://www.nrw.qld.gov.au/wildrivers/pdf/wr_indigenous_guide.pdf (viewed 12
November 2008).
[32] Cape York
Peninsula Heritage Act 2007 s 27.
[33] Wild river declaration
proposals, common Division 5 – Clause 17
(3).
[34] The strategic reserve,
means a reserve of water to be made available for developments of state or
regional significance, town water supplies and for ecotourism. The general
reserve, means a reserve of water to be made available for any purpose including
the purposes of: agricultural activities, acquaculture or general industrial
uses.
[35] R McConchie,
Indigenous protest against Wild Rivers, 27 March 2007. At http://www.abc.net.au/rural/qld/content/2006/s1882886.htm (viewed 13 November 2008).
[36] Department of Natural resources and Water, Wild Rivers Draft Indigenous
summary guide, p 2. At
http://www.nrw.qld.gov.au/wildrivers/pdf/wr_indigenous_guide.pdf (viewed 12
November 2008).
[37] Wild Rivers
Act 2005, s 17, validates carrying out existing activities and the taking of
natural resources that are authorised or permitted by a licence, permit, or
approval document held by the person under another Act or
law.
[38] Gerhardy v Brown (1985) 159 CLR 70 (‘Gerhardy’), 99 (Mason J); Western
Australia v Ward (2002) 213 CLR 1 (‘Ward’), [105]
(Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[39] ‘The
Convention’ is the International Convention on the Elimination of all
Forms of Racial Discrimination opened for signature 21 December 1965 (entered
into force 4 January 1969 except for art 14 which came into force 4 December
1982) (ICERD). ICERD entered into force for Australia on 30 October 1975 and art
14 with effect from 28 January 1993.
[40] [2008] FCAFC
100.
[41] [2008] FCAFC 100
[73].
[42] See, for example, Ward above n 36; Mabo v Queensland (1988) 166 CLR
186.
[43] [2008] FCAFC 100,
[79].
[44] [2008] FCAFC 100,
[83]. Note, however, that an application for special leave to appeal against
this decision is pending in the High
Court.
[45] Premier the
Honourable Anna Bligh, Bligh Govt Nominates Protection for the Three New Wild
Rivers, Media Release, 22 June
2008.
[46] Water Act 2000 (Qld) s 19.
[47] The Wilderness
Society and Queensland Conservation Council, Caring for Queensland’s
Wild Rivers: Indigenous rights and interests in the proposed Wild Rivers
Act, p 8. At http://www.indig-enviro.asn.au/Indigenous%20interests%20in%20Wild%20Rivers.pdf (viewed 11 November 2008)
[48] United Nations Declaration on the Rights of Indigenous Peoples, Arts 32.
[49] Wild Rivers Act 2005, s12
(1)(t), and wild river declaration proposals, common Clause
4.
[50] United Nations
Economic and Social Council, Permanent Forum on Indigenous Issues
“Report of the International Workshop on Methodologies regarding Free,
Prior and Informed Consent and Indigenous Peoples” 17-19 January 2005,
<http://daccessdds.un.org/doc/UNDOC/GEN/N05/243/26/PDF/N0524326.pdf?Open…;
(Accessed 21 November 2008).
[51] World Resources Institute “Empowering Communities Through Free, Prior and
Informed Consent” < http://www.wri.org/publication/content/8082>
(Accessed 21 November 2008)
[52] United Nations Commission on Human Rights, Sub-Commission on the Promotion and
Protection of Human Rights, Working Group on Indigenous Populations,
Twenty-second session, 19 -13 July 2004,
p.5.
[53] Premier the
Honourable Anna Bligh, Bligh Govt Nominates Protection for the Three New Wild
Rivers, Media Release, 22 June
2008.
[54] Part 2, Wild Rivers
Code
[55] Part 12, Wild Rivers
Code
[56] Part 1, Wild Rivers
Code.
[57] “Specified
works” in the Wild Rivers Act 2005 (Qld) refer to public boat ramps
and jetties.