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Gusmerini, Prue --- "The Wild Rivers Act 2005 (Qld)" [2006] IndigLawB 51; (2006) 6(22) Indigenous Law Bulletin 2


The Wild Rivers Act 2005 (Qld)

by Prue Gusmerini

In 2004, the Queensland Government made an election promise to declare 19 of Queensland’s rivers ‘wild rivers’ before the next election.[1] Fourteen of these 19 rivers are in the Cape York Peninsula. To this end, the Wild Rivers Act 2005 (Qld) (‘the Act’) was passed in October 2005.

Under the Act, the Minister for Natural Resources, Mines and Water can propose a river in Queensland for declaration.[2] The stated purpose of the Act, and the Minister’s associated power, is to preserve the natural values of Queensland’s wild rivers.[3] It does this by imposing prohibitions and restrictions on future development activities within the declared river and its catchment area.[4]

Under the draft Wild Rivers Code[5] (‘the Code’) animal husbandry, agriculture and aquaculture will be prohibited in the High Preservation Area (‘HPA’) (that is, one kilometre either side of a declared wild river and its major tributaries). These bans may, at the discretion of the Minister, be extended to include a catchment area’s floodplains and wetlands. The building of outstations and the removal of vegetation and cattle grazing will also be heavily regulated.[6]

Cape York Land Council (‘CYLC’) has expressed concerns that these prohibitions significantly interfere with native title rights and interests throughout the Cape York Peninsula.[7] The Act protects all pre-existing statutory rights, that is, rights exercised in accordance with a permit, license or under an authorisation or law at the time of a declaration, but fails to afford the same protection to native title rights and interests.

CYLC has received Queen’s Counsel advice that the wild rivers scheme impacts on the following native title rights and interests:

a) The native title right to live on the land and construct residences and outstations.

The ability to undertake ‘operational works’ (including excavating and filling work) for urban development will be subject to additional restrictions in a catchment area affected by a wild rivers declaration; whilst the clearing of vegetation in HPAs will be prohibited save in exceptional circumstances.

These restrictions will severely inhibit the ability of native title holders to undertake activities that would normally be conducted whilst living on the land and interfere with the native title right to construct residences and build outstations.

b) The native title right to take, use and enjoy natural resources.

The clearing of native vegetation in HPAs will be prohibited save in exceptional circumstances. This prohibition has the potential to interfere with the native title right to use bark, timber, grasses, stones and ochre for a wide range of purposes.

c) The native title right to use and enjoy the land, including for economic purposes.

The complete prohibitions placed on agriculture, animal husbandry, aquaculture and other environmentally relevant activities in a HPA will severely undermine the ability of native title holders to use and enjoy the land for a number of different purposes.

To date, the Queensland Government has refused to amend the Act to offer explicit protection to native title rights and interests. This refusal has been justified on the basis that a declaration will not affect native title rights and interests and thus does not constitute a future act for the purposes of the Native Title Act 1993 (Cth) (‘NTA’). Accordingly, the Queensland Government is yet to entertain the possibility of entering into an Indigenous Land Use Agreement (‘ILUA’) with the native title holders affected by a wild rivers declaration.

This difficulty is compounded by the lack of procedural rights afforded to native title holders under the Act. Unlike Local Government Authorities, native title holders and Native Title Representative Bodies are not afforded a right to receive notice of a wild river declaration.

The only substantive procedural right afforded to native title holders is a right to make a written submission on a declaration and a right to have that submission considered by the Minister.

Cape York Land Council strongly opposes the Act and its associated regulations.

On Thursday 15 June 2006, Acting Premier of Queensland, Anna Bligh, announced a moratorium on any wild river declarations in the Cape York Peninsula.[8] On 31 October, the Wild Rivers and Other Legislation Amendment Bill was tabled in the Queensland Parliament. This Bill amends the principal Act and primarily addresses the concerns of the mining lobby and the pastoralists. Cape York Land Council was not consulted in relation to these amendments.

Pertinent Sections of the Act

Section 7: Grants the Minister power to declare a wild river.

Section 11: Grants everyone the right to make submissions in relation to a wild river declaration (s 11(2)).

Section 13: Grants everyone the right to have the Minister consider those submissions in preparing a wild river declaration (ss 13 and 23(2)).

Section 17: Protection afforded to pre-existing statutory rights but not native title rights and interests.

Section 24: Local Government Authorities are the only entities legally entitled to receive copies of the Notice of Intent to declare a wild river.

Prue Gusmerini is Policy Officer at Cape York Land Council. Prue has a background in policy issues pertaining to land rights and native title. She has worked in Indigenous youth and social policy in Redfern and Waterloo.


[1] Hon Peter Beattie, Queensland’s Wild Rivers to Run Free (2004) Queensland Government Ministerial Media Statements <http://www.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=23677> at 24 October 2006.

[2] Wild Rivers Act 2005 (Qld), s 7.

[3] Wild Rivers Act 2005 (Qld), s 5(1).

[4] Queensland Department of Natural Resources and Water, Wild Rivers, (2006) <http:www.nrw.qld.gov.au/wildrivers/> at 24 October 2006.

[5] The Act itself does not regulate or prohibit development activity: Wild Rivers Act 2005 (Qld), s 14. This is dealt with by the draft Wild Rivers Code.

[6] Queensland Department of Natural Resources and Water, Wild Rivers Code, (2006) <http://www.nrw.qld.au/wildrivers/code_of_assessment.html> at 24 October 2006.

[7] Hon Peter Beattie, Government Acts on Concerns About Wild Rivers Act (Press Release, 24 July 2006) <http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=47386> at 24 October 2006.

[8] Hon Anna Bligh, Consideration for a Moratorium on Wild River Declarations (Press Release, 15 June 2006) <http://www.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=46709> at 24 October 2006.


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