Wild Rivers (Environmental Management) Bill 2011

Senator SIEWERT (Western Australia) (9.42 am)—I want to start addressing the Wild Rivers (Environmental Management) Bill 2011 by stating the obvious—that is, the Greens care about and are deeply committed to the rights of Aboriginal and Torres Strait Islander peoples.

We are a party that remains committed to the wider principle of self-determination, something other parties used to believe in before—in particular, the Labor Party—but seem to have now gone down the line of the new approach, which is a form of paternalism. The Greens care about and are deeply committed to protecting and conserving Australia’s biodiversity and natural heritage. For anyone who has paid attention to our efforts over the last few years and is aware of the significant work we have done both on Aboriginal and Torres Strait Islander peoples’ rights and on environmental conservation, this should be noncontroversial and self-evident. However, some argue that you cannot have both environmental protection and conservation and economic development for Aboriginal communities. The Greens do not believe that this is the case. In fact I believe there is strong and compelling evidence that the two can go hand in hand.

It is fair to say there has been a concerted effort to try to reframe this debate, which is about how best to support Aboriginal communities and native title holders to exercise their underlying rights as the custodians of their lands and about how they can use their interests in the lands and see country as a basis for sustainable economic and community development, as a political wedge. They are trying to frame the debate such that the only choice is between mega-industrial development on the one hand, which we believe can ultimately end up in the interests of outside players and vested interests from the big end of town—there is plenty of evidence of that—or locking up land and ignoring people. We believe that is not true and there is plenty of evidence to show that conservation and development activities can in fact go hand in hand.

At the same time, there is also plenty of evidence of where an all-out approach to industrial development has totally failed to realise the hopes of Aboriginal landowners or deliver lasting benefits to their communities. I point to my home state of Western Australia and the Pilbara, where quite clearly the benefits developed from mining have not come to the Aboriginal people living in that area. There are also plenty of opportunities for sustainable development activities on Aboriginal lands which will include but are not limited to tourism and ranger programs. There is a lot of other potential for Aboriginal land.

In fact, the coexistence and interaction of development and conservation are explicitly recognised in the Declaration of the Rights of Indigenous Peoples. The declaration recognises and acknowledges both a right to conservation and environmental protection for Indigenous lands, in article 29, and a right to determine strategies and priorities for the development of Indigenous lands and resources, in article 32. These rights are not contradictory—they coexist and interact within the framework of both Indigenous rights and decision making and Australian law—as clearly articulated in article 46, which states that these rights:

... shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations ... Any such limitations shall be nondiscriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirement of a democratic society.

The coexistence and interaction of human rights should not be news to anyone in this place. I will return to the declaration later.

In relation to how we strike the right balance to deliver the best possible outcomes for both community development and conservation, from my point of view the ideal way forward is one where Aboriginal communities are central players and the key decision makers in decisions about both conservation and develop-ment—where they are resourced and supported to make informed decisions about which areas of their land they want to protect and where they believe some sorts of development activities might be appropriate and beneficial.

How you strike the right balance between development and conservation is not a simple issue, and efforts to reduce this complexity into black and white terms can be misleading and counterproductive, and ultimately lead to poorer outcomes for both Aboriginal communities and natural heritage outcomes. The place to begin is not in simply overturning state rights and state conservation laws to allow unfettered access for the destructive exploitation of resources but in governments establishing true relationships with Aboriginal people, using public investment to seed new enterprises and industries that build on and respect Aboriginal land interests, providing incentives to private enterprises to partner with and deliver opportunities to those communities, recognising and valuing the existing customary economy, and finding innovative ways of making Indigenous knowledge, skills and culture and caring for country deliver economic benefits.

Irrespective of the wild rivers laws, Aboriginal communities seeking to undertake development on their lands face a whole lot of other barriers and challenges, including addressing the limitations and complexities of the Native Title Act and needing to comply with the EPBC Act and a significant list of state based development and conservation legislation. To this end, the Greens believe there needs to be much more funding to provide support and assistance to Aboriginal and Torres Strait Islander communities to help them deal with the procedural requirements for dealing with economic development proposals, conservation and heritage proposals and joint management agreements. There are of course state and federal limitations and guidelines that apply to all development activities in Australia, irrespective of whether the land is Aboriginal land, freehold or crown land.

It has long been recognised that state and federal laws concerning conservation and development need to respect and include the rights, interests and cultural heritage of Aboriginal and Torres Strait Islander peoples. While there has been some progress on these issues over the years, I am the first to admit we still have a way to go on getting this right. Nevertheless there is a clear differentiation of relationship between Indigenous rights in decision making across environmental and development regulation, and in my mind it makes perfect sense to recognise a continuum where the rights of traditional owners are strongest in relation to those activities which have the greatest impact on their preexisting and underlying rights to their land.

Unfortunately, this bill seeks to turn this concept on its head. The place where these rights should have the strongest recognition and expression in law is where Aboriginal land and resources are threatened with destruction or appropriation. In native title law, the rights of traditional owners are expressed as rights to negotiate in relation to future acts where there is a change in tenure or land use that affects underlying native title rights, and the diminution of those rights is meant to be compensated in law.

If an act by a state government—for instance, in establishing or declaring a protected area—impacts on those native title rights then there is a right to negotiate and a right to compensation. There should be a clear obligation both to strongly take into account cultural heritage, values and Indigenous aspirations in the identification and declaration of those areas, and to support and resource Indigenous management or comanagement of those areas. We believe this bill turns this approach on its head by giving individual ‘owners’ who are not necessarily traditional owners an absolute right of veto over conservation declarations which do not—as specified clearly in the provisions of the Queensland Wild Rivers Act—impact upon, effect or diminish those underlying native title rights but at the same time give them no rights of consent or veto, or to negotiate on destructive development activities which impact directly upon their native title rights and interests, and cultural and natural heritage values. We believe this is not the right approach.

Many arguments have been flung around during this debate. I do not have time to go into them, but let me say they are not true. We do not unthinkingly support the Queensland government or other organisations on this. We do not believe the Queensland government handled consultation on this in an exemplary manner.

Senator SIEWERT—If Senator Macdonald would let me speak uninterrupted that would be appreciated. At the same time we also do not offer unthinking support to anyone claiming to speak on behalf of Aboriginal rights or the interests of all Aboriginal people, but we do not believe this is the right way to go when you look at the details of the bill. This bill is different from the first one that went through this place not so long ago.

This week we have been hearing calls for a new intervention in Alice Springs. We have deep concerns that this sends a particular message about the way that certain members of the coalition and, unfortunately, the government still want to take top-down approaches to the way we deal with Aboriginal issues—that is, not including them, taking a new paternalistic approach, not adequately consulting and believing that, for example, just sending in more police will fix a particular problem. In other words, I am not convinced that the coalition has changed its approach to the way it addresses Aboriginal issues. I am concerned that the discussion implies that this is about free, prior and informed consent; it does not in fact do justice to free, prior and informed consent and is giving it to a certain group of people over limited decision making.

If you look at the Declaration of the Rights of Indigenous Peoples, you see that it very clearly intends to describe and invoke universal rights that necessarily apply to all Indigenous peoples, not a particular group of Indigenous people, which is what, unfortunately, this bill does. It gives a particular group of Indigenous people some right of veto over a particular declaration, but not over all developments of their land. Our reading of it is that it also means it gives a group of people the right of veto over a declaration in a particular area. If there is more development they cannot exercise that right. It also then overrides the rights of other people, for example, further down the catchment area, who have their traditional lands. Once the group has made a decision, the next group cannot make a decision. In other words, that group’s rights have been overtaken. That is our reading of the bill. There are very concerning aspects in this bill in that it does not coincide with the requirements under the Declaration of the Rights of Indigenous Peoples, to which I am very pleased to say Australia is a signatory.

These are the issues we believe need to be looked at because we believe there are significant problems in this bill, including that it fails to differentiate between the rights of different groups of traditional owners in relation to decision making concerning a river basin or floodplain and, as I said, that it impacts on other groups. We believe this bill has very major problems. We also believe that it needs to be sent to a committee so we will be supporting the second reading amendment. We believe these issues need to be looked at. They are new issues that have come up since the bill last went through this place. (Time expired)