The current imbroglio over the Commonwealth’s buy back of water from a company formerly associated with a government minister has dominated the news now for some days. Amongst the commentary I have been left wondering about some assertions concerning the water entitlements at the heart of the deal.
Water regulation is an extremely complicated field at the intersection of science, conservation, policy, the market, and politics – and I don’t pretend to be an expert. However, in this very lawyerly post, I try to work out the general operation of the regulatory framework that underpins the drama, to try to isolate the legal questions.
The dominant discourse in native title amendments is that of … coal?
In June 2015, the Australian Law Reform Commission handed down its final report into the Native Title Act. Amongst its recommendations was the amendment of provisions for the process of authorising Indigenous land use agreements (‘ILUAs’).
Coinciding with the ALRC Report, the Northern Development White Paper proposed a fund to settle all native title claims within a decade.
There has been no response to either the Report and the White Paper that might indicate just how native title processes might be improved, let alone settled, in the short or medium term. All of a sudden however, native title reform is back in vogue. But the heat of debate over proposed changes to ILUA authorisation masks what is at stake.
Word on the street (ie all over mainstream news outlets, on social media and in pubs across the north) has it that there is a push for a new state of North Queensland. A new state, they say, that is truly representative of the needs of those in the north, and one that will equitably distribute state finances and finally provide the infrastructure the north needs.
The issue is as old as federation itself and certainly, the Constitution provides for a fairly straightforward reception of new states into the federation – subject to the agreement of the parliament of the relevant state. So – legally possible, but likely politically unviable as states presumably seek to retain their stake in national taxation revenues, and their political power base. It is difficult to imagine that the relatively small population in the north could outvote the populous south-east of the state, to effect such radical change. It is also difficult to imagine the economic viability of the north as its own state.
The real problem though for those who call for North Queensland secession, is that they smack of parochialism and are therefore treated with derision by those in the south. This buries the real issue underlying the movement. While a new state might be the wrong solution, calls for a split state signal a deeper problem of our system of governance that deserves attention.
It’s usual to require a permit for disruptive activity in a public reserve
The case of the photographer being banned from photographing Sydney’s foreshore reserve, Barangaroo, has intrigued me. The story is that landscape photographer Ken Duncan was taking photos of landscape work at the parkland, when he was stopped by rangers. He was told that as he had a tripod, his work was commercial and therefore not permitted without a permit. Duncan was in fact taking the photos for friends, for no charge. However it appears that taking photos is itself prohibited activity in the reserve.
This raises some interesting questions.
Mining company Adani wishes to build an airport, power station and accommodation for its Carmichael mine on leasehold land it owns in central Queensland. ABC now reports that the Queensland Coordinator-General has proposed that the government convert Adani’s leasehold land into freehold land. The effect of this conversion would be to extinguish native title over the land, held by the Wangan and Jabilingou people. While the government has extinguished native title this way in the past, this is apparently the first time that it will be done without the agreement of the traditional owners.
This move calls into question the Queensland government’s commitment to human rights – notably the right to free, prior and informed consent. This post explores the implications of this decision, and the precedent it sets for land dealings – notably against the backdrop of the pro-development approach of the Northern Development White Paper.
The contemporary discourse around land tenure in Queensland – and more widely in Northern Australia – is about facilitating economic development (or sometimes ‘growth’). Of little interest in most metropolitan areas, land tenure is of great interest to pastoralists and Indigenous Australians, both of which groups hold tenures ‘less than freehold’. It is also of great interest to government, both state and federal, seeking to promote economic development.
One of the recurrent themes in economic development in the north is the need for ‘secure tradeable’ interests in land. This concept is implicit in the recent Queensland reforms allowing holders of Indigenous tenures to ‘freehold’ their land. The cost of this is extinguishment of native title, albeit in consultation with traditional owners. The implied benefit is the ability to use land as collateral for investment.
This post challenges the received wisdom of freehold as the gold standard of land tenure. I suggest that we should be thinking more creatively about tenure and economic development in the north, in particular respecting Aboriginal and Torres Strait Islander interests in land.
The Commonwealth government recently released its White Paper on Developing Northern Australia (‘White Paper’). The White Paper identifies land tenure as a key component of development in the north. It identifies challenges associated with land tenure, and proposes some tentative solutions, although in the main the action plan for land promotes undertaking pilot schemes rather than concrete plans.
This post outlines the land tenure ‘challenges’ identified in the White Paper, the opportunities that might arise and some of the potential impacts. In particular, I am interested in how the language around land tenure might advance or affect social and environmental objectives in northern Australia.