The Federal Court has declared three Wild River Declarations over Cape York river systems invalid and of no effect. This decision means that the three Wild River Declarations (which limited development in specified locations) no longer present an obstacle to development.
Prior to this decision being handed down, the Queensland government introduced amendments that will repeal Queensland’s Wild Rivers legislation. The Queensland government proposes to replace the Wild River Declarations with “strategic environmental areas” under the Regional Planning Interests Act 2014 (Qld). These areas require a proponent to be acting under an exemption or to hold a regional interests development approval to develop a project.
The Wild Rivers Act 2005 (Qld) (“the Act”) was enacted in 2005 and allowed the Minister to make a Wild Rivers Declaration. A Wild Rivers Declaration applies to designated rivers and sets out the restrictions on the development of natural resources as well as applicable rules or limits on the development activities in the designated wild river area. The government utilised the legislation to make twelve Wild River Declarations.
Three of these declarations (“the Declarations”) were made in April of 2009 by the then Minister of the Department for Natural Resources, Mines and Energy, being the:
- Archer Basin Wild River Declaration
- Lockhart Basin Wild River Declaration
- Stewart Basin Wild River Declaration.
The Applicants commenced proceedings in the Federal Court (Koowarta v State of Queensland  FCA 627) seeking declarations that the Declarations were invalid and of no effect for the following reasons:
- procedural errors occurred in the making of each declaration;
- each declaration was so unreasonable as to constitute an invalid exercise of the power conferred under the Act;
- each declaration was not reasonably proportionate to the pursuit of the enabling purpose under the Act.
The Applicants also argued that the Archer Basin Wild River Declaration was inconsistent with the Native Title Act 1993 (Cth) and the Racial Discrimination Act 1975 (Cth) and therefore invalid. This argument meant that the proceedings were brought in the federal court, despite the ministerial decision being made under Queensland legislation.
Section 13 of the Act specified matters that the Minister was required to consider in making a decision. Relevant to the case at hand, the Minister was required to consider the results of community consultation, and all properly made submissions about the declaration proposal. Section 15 of the Act then provided that after considering the matters mentioned in section 13 of the Act, the Minister could make a Wild Rivers Declaration.
Greenwood J found for the Applicants, on the basis that procedural errors had occurred when making the Declarations. As a result, the Declarations were held to be invalid and of no effect. The State of Queensland was ordered to pay costs.
This conclusion was reached because on the date that the Minister made the Declarations, he had not personally considered all properly made public submissions - a requirement under the Act. Indeed, at the time of making the decision, the Court found that the Minister had not viewed the relevant materials. Because the Act required the Minister to have considered the matters in section 13 before making a decision, the purported exercise of power by the Minister in making the Declarations was not valid.
Wider impact of the decision
The proceedings were initiated in the Federal Court because the claim raised matters arising under the laws of the Commonwealth Parliament. However, the argument regarding inconsistency with the Native Title Act was not dealt with substantively in the judgment, due to the Court’s finding that there were procedural errors in the decision making process. As a result, the finding of the Court is not limited to Indigenous groups and others may benefit from the removal of limitations on development contained in the Declarations.
Importantly, however, the decision does not extend to other Wild Rivers Declarations in Queensland. This is because the judgment is based purely on the failure of the decision maker to consider certain documents in a specific instance, rather than some broader principle that would invalidate all Wild Rivers Declarations. Therefore, while in these three wild river areas, the declarations are invalid and no longer pose an obstacle to the development of projects, in other wild river areas the judgment is of no effect.
On 4 June 2014, the Deputy Premier Jeff Seeney introduced the State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Bill 2014 (“the Bill”). The Bill is currently before the State Development, Infrastructure and Industry Committee for consideration, with the report to be provided by 28 July 2014.
This Bill has quietly set into motion the repeal of the entirety of the Act. The Queensland government believes that policy objectives can be more effectively achieved under the existing assessment framework and the Regional Planning Interests Act 2014 (Qld).
In place of declared wild river areas, the Queensland government has created “strategic environmental areas” under the Regional Planning Interests Act . In these areas, a person is not able to carry out a resource activity or a regulated activity unless the person is acting under an exemption, or holds a regional interests development approval. The Bill also amends other legislation, such as the Environmental Protection Act 1994 (Qld) to allow for transitional provisions to facilitate the transition from Wild Rivers Declarations to strategic environmental areas.
Under the Regional Planning Interests Regulations 2014 (Qld), the Cape York is prescribed as a strategic environmental area. This is an interim classification, until the Queensland government finalises the Cape York Regional Plan which identifies areas of regional interest, including strategic environmental areas, priority agricultural areas and priority living areas. The regional plan is currently under consideration by the Queensland government.