Thursday 8 April 2010

Wild Rivers hearing in Cairns April 13th

No matter what else you may think about the national leader of the Liberal Party, right now Tony Abbott is acting as a friend to Aboriginal people in Cape York Peninsula, writes social campaigner and bush lawyer, Bryan Law.


Thanks to Tony Abbott's efforts, the Legal and Constitutional Affairs Legislation Committee of the Australian Senate is conducting an inquiry into the Wild Rivers (Environmental Management) Bill 2010 [No. 2], introduced into the Senate by Nigel Scullion, Deputy Leader of the Nationals, from the Northern Territory.

The Bill mirrors one introduced into the House of Representatives by Tony Abbott, but the make-up of the Senate allowed for this inquiry to be established there.
CairnsBlog readers will know that the Wild Rivers issue has been hotly debated here and that many people have called for the Wilderness Society to put personal attacks to one side, and provide some details and facts about ANY material threat to the health of Cape York rivers that the Wild Rivers legislation will address.

CairnsBlog Wild Rivers coverage

Astute readers will have noticed that The Wilderness Society failed comprehensively to take up that invitation, confining themselves to smear and innuendo about Noel Pearson, his brother Gerhardt, and anyone who supports them. TWS have set a very low standard of debate.

They’re keeping to this low standard by failing to lodge any submission to the Senate Committee at all. One can only assume they have nothing to say.

For those interested in getting a broad and informed perspective, there are 28 public submissions to the inquiry:

  • Six are from Traditional Owners or TO Land Trusts/organisations which vehemently oppose the Queensland legislation.
  • Four are from traditional Owners or TO Land Trusts/organisations which favour the Queensland legislation, although two of those also call for better and more effective consultation, and one isn’t from Cape York or anywhere close to it.
  • Three are from organisations with which the Pearsons are associated (Cape York Land Council, Balkanu, and Cape York Institute) and two are from researchers (one Bama, one undeclared) working for the Give Us a Go organisation. These all oppose the Queensland legislation.

    (If you take these numbers as a guide, to the feeling in the Cape and Gulf combined is 3-1 against the Queensland Legislation)
  • Three submissions are from senior legal Counsel.
  • Five are from broadly European bodies with an interest in Cape York (either economic development, or conservation) including the ACF which seems to want 5 bob each way. The other four oppose the Queensland legislation.
  • Three are from individual Europeans, including a “conservation biologist” who worked for David Claudie’s mob and TWS, and an ex-ACF CEO who quotes with approval a 1980 policy document on “Wild and Scenic Rivers” and their protection. These two support the Queensland legislation while the third opposes.
  • There’s also a transcript of the public hearings conducted on 31 March in Canberra, which includes testimony from Greg McIntyre SC, Noel Pearson, and Professor John Williams.

Anyone interested in Wild Rivers as a political and legal issue, ought read the submissions and proceedings, which are very detailed and informative. It’s possible to move from areas around which there is consensus, through areas which are strongly conflicted, and to areas where innovation and creative thinking are required.

Legal thinking

For instance, the legal consensus appears to be that the Queensland legislation diminishes the native title rights of those groups who enjoy the full possessory version of native title (where there’s been no restriction via the creation of pastoral leases or other title) which is most of Cape York Peninsula.

This leads to a conclusion that the Queensland legislation may have infringed against the Native Title Act in the way it was introduced. Certainly Greg McIntyre believes the matter is actionable.

At the same time, legal opinion was that the threshold required for action under the Racial Discrimination Act probably had not been reached.

Noel Pearson stated that CYLC was reluctant to engage in litigation, and wanted a political solution instead. Tony Abbott’s Bill would go some way to providing that solution. However the legal opinion was that the Abbott Bill was not general enough in application to provide a solution for long, and that the Queensland government could easily legislate around it if it were minded to.

Tactically Abbott’s Bill might hold the Queensland Act in abeyance until 2012, when Queensland Labor can be comprehensively dumped from office.

Aboriginal thinking

If you want to track the differences in Aboriginal positions, read the Balkanu submission which gives a fabulous potted history of land tenure negotiations in Cape York. Then read the submission from Chuulangun Aboriginal Corporation which is a very strong supporter of the Queensland Legislation.

At the nub of Balkanu’s submission is that the regime of mutual agreement under the Cape York Heads of Agreement, and associated reciprocal processes has delivered the following conservation outcomes:

  • Marina Plains, August 2005: approx. 6800 hectares (950ha Aboriginal freehold land,
    5900ha new national park)
  • Kalpowar, December 2005: approx. 400,000 ha (200 000 ha Aboriginal freehold land;
    200,000ha new national park)
  • Archer Point, August 2006: 9,700 ha (1700 ha Aboriginal freehold with 570ha covered by
    conservation agreement, 8000 new National Park)
  • Melsonby, November 2006: approx. 19,700 ha (10,710ha Aboriginal freehold with 3,610ha
    covered by conservation agreement; 8,990 ha new national park)
  • Running Creek and Lilyvale, July 2008: approx. 110,500 ha (74,940 ha Aboriginal freehold
    land; 35,560 ha new national park - Lama Lama National Park Cape York Peninsula
    Aboriginal Land).
  • McIllwraith & Mt Croll, August 2008: approx. 375,000ha (160,000ha new national park –
    Kulla (McIlwraith Range) National Park.

Balkanu then asserts that despite all this successful negotiation in good faith, the Queensland Wild Rivers Act imposed a unilateral, compulsory regime of additional obligations and restrictions without consultation. (No wonder they’re pissed off).

Chuulangan sees the Queensland legislation as compatible with its own objectives, as well as providing some protection from the disgusting Pearsons and other Aboriginal groups.

European thinking

In terms of European politics it’s clear from the transcript, via the questions of Labor Chair Trish Crossin, that the Federal ALP will not intervene into the policy decisions of the Queensland Labor government, even if it’s in breach of the Native Title Act. Senator Crossin ran the Bligh Labor line at every opportunity.

It’s clear from simple observation that Queensland Premier Anna Bligh, Cairms MP Desley Boyle, and their cohort of evil pirates are perfectly prepared to die in a ditch for Green preferences. It costs them nothing to trade away Aboriginal land. Likewise the Liberal National Party will use the divisive politics of Wild Rivers in their own partisan interests.

Conclusion

Were I given a choice, I’d like to see genuine negotiation, with a view to continuing conservation outcomes on Cape York that involve “Free Prior Informed Consent”. Such an outcome is still possible but, given the attitudes of TWS and the ALP, unlikely.

In that event we get to choose the lesser of two evils, and I can’t imagine anything more disgracefully evil than the arrogance and intolerance of Anna Bligh and TWS. I say that if they want to die in a ditch, they ought be allowed to. Perhaps even assisted.

The Senate Committee is conducting a public hearing in Cairns on Tuesday 13 April. I’ll be there with my placard (identifying TWS as the “Terra Nullius Wilderness GeStapo”).

Surely we are able to generate a solution based on Free Prior Informed Consent, and learn from Aboriginal people instead of treating them like wayward children.

10 comments:

Glenn Walker said...

Bryan,

You are wrong.

The Wilderness Society has lodged
an extensive submission

We will be appearing at the hearing, alongside Indigenous supporters of Wild Rivers.

We look forward to uncovering the campaign of misinformation being waged by the Pearson/Abbott camp, as well as highlighting the need for Wild River protection to prevent destructive development, for example the Cape Alumina mine on the Steve Irwin Wildlife Reserve (as highlighted in recent media).

Dave Kimble said...

On Radio National this week Noel Pearson was asked which projects have been knocked back due to the Wild Rivers Act. His first answer was the housing estate at Hopevale, but Hopevale is not in a Wild Rivers Area. His second answer was that people wouldn't be able to grow their own veggies if they lived close to a river. This is nonsense. He also admitted in the Senate enquiry that no development applications have been lodged in Wild Rivers declared areas - a "fact" that was disputed by Senator Crossin, who says there have been, and that they were passed.

So how come Pearson cannot come up with anything sensible in response to this obvious question ? He's a lawyer, from Hopevale, so he must know that Hopevale's problems weren't due to being in a Wild Rivers Area. Why try and pretend it is ?

Could it be that he hasn't got a leg to stand on, and that all this bluster is about something other than indigenous rights to grow their own veggies ?

In his CYI report "From hand-out to hand up" he spends 3 pages on how to help Aurukun people get "job-ready" so that they can apply for jobs strip-mining their land for bauxite (the Chalco development). That is the sort of thing Pearson thinks Aurukun people ought to be into - totally destroying their sacred land for dollars.

Pearson is also concerned that other bauxite developments, like the one that overlaps the Steve Irwin Reserve, might be prevented by the Wild Rivers Act (as it certainly should).

So it appears that Pearson is more interested in mining than looking after country, and that is why he finds a friend in Tony Abbott.

Matt said...

It's too convenient to dismiss Pearson's stance on Wild Rivers as self-serving or political - it is consistent with his arguments on Native Title for two decades or more.
Wild Rivers legislation is statute law superimposed on a fundamental common law right which has only been established in those same two decades.
It is contrary to the expectation of traditional owners, that where they are again the sole occupants of their land, that their right to be the primary determinants of land use should be overruled so lightly.
Any diminution of common law rights by statute law ought to be challenged.
Matt, CYP

maryo said...

Great article, Bryan. Thanks!

Bob Beamon said...

Here are some indigenous voices in support of Wild Rivers:

Gina Castelain, Director of Wik Projects, Wik-Waya Traditional Owner:
"From our point of view, we don't see any way in which wild rivers is going to cost any jobs, and
we actually see ways in which it can create jobs" ~ The Australian, 9 Jun 2009

Murrandoo Yanner, Gangalidda Traditional Owner.
[Wild Rivers is the] best legislation in decades for Aboriginal People and that's proven on the ground here in the lower Gulf. We have been able to block a lot of nasty developments that would have wrecked the sustainability of our rivers since the introduction of this legislation”
~ Living Black, SBS 8 March 2010

Terry O'Shane, Northern Queensland Land Council Chairman.
"I don't agree with Noel. I think it's very important that we protect these ecosystems."
~ The Australian, 17 Nov 2007

Greg McLean, Mayor of Hopevale.
"Wild Rivers legislation won't affect communities unless they are planning major developments
like refineries."
~ WIN TV News Cairns, 17 Jul 2009

Elders of Uniting Church Congregation of Aurukun:
"It is of great comfort to us that there are people within the Queensland Government who care
deeply about the preservation of our beautiful rivers and wetlands and who also want to listen to
indigenous voices speaking out about important issues that effect our indigenous life so
profoundly." ~ Letter to Qld Minister regarding the Archer Basin Wild River declaration proposal, 17 Nov 2008

David Claudie, Chairman of Chuulangun Aboriginal Corporation, Northern Kaanju
Traditional Owner.
"The whole Wenlock River and its tributaries have enormous cultural significance as the Creator
of all of Kuuku I'yuNgaachi under the umbrella of Pianamu (Rainbow Serpent). We are obliged
under Kaanju law and custom to 'look after' our Ngaachi in a sustainable manner. In return our
Stories, which are the land, will look after us physically, culturally and spiritually."
~ Submission into Wenlock Basin Wild River declaration proposal, 28 May 2009

Gavin Bassani, Lama Lama Traditional Owner.
"The legislation is not there to block you from doing stuff, it's there to initially protect the
environment, rather than us going out willy-nilly and chopping up the whole environment."
~ Bush TV - "Wild Rivers", Jul 2008

Richard Barkley, Tanquith Traditional Owner.
"As well as better protection for the environment [with Wild Rivers legislation], there will also be
more jobs" ~ Western Cape Bulletin, 18 Jul 2007

William Busch, Mapoon Traditional Owner.
"The miners and the Government have to work together to see how they could do something to not
try and damage the rivers, and even our people ourselves have to do it."
~ Bush TV - "Wild Rivers", Jul 2008

Bryan Law said...

I think I understand now Glen, why TWS has been reluctant to go on record with its understandings. It might be only me, but I find the TWS submission a masterpiece of colonial fabrication. In paragraph 2 you negate any disagreement with bama by asserting that Noel Pearson personally had “made agreements” in the processes of legislating the Wild Rivers Act. Terra Nullius, old cobber.

This is a class act for para 2, but nothing compared to what’s achieved on page 2, where the real threat to Native Title is coming from..... yes folk’s it’s the “other Indigenous groups upstream”.

The “other Indigenous groups upstream”.

It explains a lot.

I’m going to read on, now, looking to see if there’s an answer to my question “What specific project threats are there right now to bio-values in Cape York Peninsula?”. Then we can get a real discussion going about how further dispossessing Bama can possibly help the situation?.

Feel free to answer it yourself if you want to.

Bryan Law said...

I think I understand now Glen, why TWS has been reluctant to go on record with its understandings. It might be only me, but I find the TWS submission a masterpiece of colonial fabrication. In paragraph 2 you negate any disagreement with bama by asserting that Noel Pearson personally had “made agreements” in the processes of legislating the Wild Rivers Act. Terra Nullius, old cobber.

This is a class act for para 2, but nothing compared to what’s achieved on page 2, where the real threat to Native Title is coming from..... yes folk’s it’s the “other Indigenous groups upstream”.

The “other Indigenous groups upstream”.

It explains a lot.

I’m going to read on, now, looking to see if there’s an answer to my question “What specific project threats are there right now to bio-values in Cape York Peninsula?”. Then we can get a real discussion going about how further dispossessing Bama can possibly help the situation?.

Feel free to answer it yourself if you want to.

Matt CYP said...

Bob,
Of course "it's very important that we protect these ecosystems", the opponents of Wild Rivers are not suggesting otherwise.
What I'd ask the people you've quoted is: "Are you sure you have to wear this weakening of your native title rights to protect these ecosystems? Is this approach to conservation even likely to achieve its goals, given that it limits the role of traditional owners to govt-supported caretakers of their country, rather than independent self-reliant owners of the land exercising their right to invest their energies in and wrest a living from their family estates? Aren't you accepting the govt line that the state needs to limit your rights because traditional owners can't be relied on to look after the country?"
Despite all the talk of permitting sustainable development, the govt's approach to land use on the Peninsula perpetuates communal ownership arrangements which effectively preclude Aboriginal people from developing enterprises or investing privately in housing.
So a few dozen get wages as rangers, while everyone else remains mired in dysfunctional public housing, on welfare, with little prospect of meaningful employment despite the current efforts in training and welfare reform.

Muns said...

Ah, Bryan,

It's a tad ironic that you call for wildness society to: "put personal attacks to one side", then you say:

"I can’t imagine anything more disgracefully evil than the arrogance and intolerance of Anna Bligh and TWS. I say that if they want to die in a ditch, they ought be allowed to. Perhaps even assisted."

That's a pretty personal, aggressive and violent thing to say, contrary to the posturing about personal attacks.

It's also ironic that you say there are no threats to cape york when the cape alumina mine has been all over the news, and wild rivers being able to stop it.

You really, really do love Noel pearson, its astounding your mythical views that all aboriginal people will be default want to protect their land and that noone else should say what happens on their land because we need to trust they won't cut deals with mining companies etc.

alls i can say is youv got one serious axe to grind about wildness society. find a new hobby.

Stacey OBrien said...

very interesting read....could someone please ask TWS for me....

Why did TWS decide to sign the WRL and agree that it was ok for the government to MINE UNDER THE RIVERS?