20 July 2010
Muckaty Land Trust litigation
The proposed site for Australia's national radioactive waste facility is on Aboriginal land. One group of traditional owners nominated the site and a lot of the other traditional owners are furious. The opponents are off to court to strike out what they say was a flawed nomination process.
This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.
Damien Carrick: Hello, welcome to the Law Report. Today, the case of the female prisoner who has won the right to have access to IVF treatment. That's a little later.
First, to litigation which commences next Monday in the Federal Court. This dispute centres on the proposed site of Australia's first national, low and intermediate level, radioactive waste management facility. This facility is designed to store waste from nuclear medicine processes and also from the operations of the Lucas Heights nuclear reactor in Sydney.
Of course no-one wants a nuclear dump in their backyard, and not surprisingly, the feds have had problems for many years finding a community willing to embrace the idea.
Several years ago one group did give the nod. A small group of traditional landowners from the Muckaty Land Trust, which is about 120 kilometres north of Tennant Creek in the Northern Territory.
After being identified by the Northern Land Council as the group entitled to negotiate with government, this group agreed to hand over a small parcel of land in return for $12 million. But many other traditional landowners in the area are furious. They say the group who gave the go-ahead are not the traditional landowners of the proposed site.
Dianne Stokes is a Yapa Yapa elder and Jeannie Sambo is a Milwayi elder. They are part of a large group of traditional owners who have given instructions to lawyers to commence legal action.
And the pair are part of a group of Indigenous people who will be travelling to Melbourne for next Monday's court appearance. Jeannie and Diane say that there are five clans who form part of the Muckaty Land Trust.
Jeannie Sambo: We have Wirntiku, we have Ngarrka, Milwayi, Yapa Yapa, and we've got Ngapa. Ngapa is broken up into three clans.
Damien Carrick: Now part of the Ngapa clan have nominated land as a site for a radioactive waste facility. They say that they are the traditional owners of that site. What is your view, Jeannie and Diane?
Jeannie Sambo: Well the place where they oppose for the waste dump is the Milwayi area. The Ngapa clan, they were asked to be looking after the area as caretakers. It belongs to the Milwayi. Karawar is the name for Milwayi group. It's a place where they use it for ceremonial dances.
Damien Carrick: So a number of groups use this area which is the proposed site of the waste facility?
Jeannie Sambo: And Ngapa comes in there, it belongs to Mark Lane, and Dick Foster, they're Ngapa clan that come through to Karawar, passing through, and myself, Yapa Yapa
Damien Carrick: Now Mark Lane is the plaintiff in an action before the Federal Court, because although some of the Ngapa people have approved the site of the waste facility, some others, such as the person you're talking about, Mark Chungaloo, does not approve the use of this site for the waste facility. Is that right?
Jeannie Sambo: He's not the only one saying that he's not approving the waste dump to come through the land. It's other Ngapa clans too which weren't identified by the reports that they've been doing.
Damien Carrick: Now you're talking there about reports. I understand that an anthropologist, or a group of anthropologists, consulted with the local people to identify the traditional owners of the waste site, and they came to the view that one group of Ngapa people, I think the group led by one traditional elder, Amy Lauder, those anthropologists found that that group are the traditional owners for this piece of land and they can speak, and they can decide whether or not that land should be used as a waste facility. What do you think of those reports, and that process?
Dianne Stokes: I think they should go back to all the groups about deciding whether we say yes or no to the waste dump.
Damien Carrick: Were you either of you, Jeannie or Dianne, were you ever consulted, or were you ever part of a process, or were you ever aware of a process which was to determine who the traditional owners of the site are?
Dianne Stokes: Every traditional owners of the Land Trust weren't consulted properly. Because they didn't come back to the whole traditional owners. If they would have said it at the beginning to the whole traditional owners, and to ask and point out the map to say whose country is this Karawa? We want to ask about this land, because it was pointed out that we should have a waste dump there, so the elders that we had at the meeting would have said no, this is Milwayi, and then we would have said no, we don't want any waste dump come to this land. And all this problem that we're talking now, it wouldn't have happened.
Damien Carrick: So you're saying that there was some consultation but it didn't go far enough. It didn't get to the heart of the matter?
Dianne Stokes: Yes, it didn't get far enough.
Damien Carrick: Can you tell me about some of the reasons why you don't want the facility at this site?
Dianne Stokes: Well I want to tell you because I want to let everyone know. That land belongs to Milwayi, and it is a man's sacred area, and woman is not allowed to talk about it, woman is not allowed to give the land away, and that's their business to talk about really. Looking back, that name, Karawa, belongs to Milwayi, and it's not Ngapa.
Damien Carrick: And Jeannie, do you agree with that?
Jeannie Sambo: Yes, I do agree with that.
Damien Carrick: Milwayi elder Jeannie Sambo and Yapa Yapa elder Dianne Stokes.
Karawar is the name of the place they mentioned where the men's ceremonies take place. It's immediately adjacent to the site of the proposed facility.
Sydney lawyer George Newhouse is part of the legal team that is taking their case to the federal court. He says the heart of this dispute is the process by which the Northern Land Council identified the group, which went on to negotiate with the Commonwealth.
George Newhouse: The Northern Land Council decided to put Muckaty forward and nominate it as the site of a nuclear waste dump. How that process took place is a matter of litigation. We aren't entirely sure how the process took place, because our clients weren't properly consulted. So it's not entirely clear. The Northern Land Council say that they appropriately consulted under the Act and they have nominated the site.
Our clients say that's not true at all, they weren't properly consulted, and they never agreed.
Damien Carrick: So the crux of this argument is that the Northern Land Council say that they have complied with the requirements under the legislation to consult with the traditional owners, and the traditional owners want the site nominated as a facility site. But you're saying that they had spoken to the wrong traditional owners or not all the traditional owners.
George Newhouse: Well first of all, I don't know what the Northern Land Council is saying, because they haven't put on a defence, and they haven't really responded to our application. So I don't know how you can put their position when we don't know their position. But I presume that's what they will say; they've said it in various other venues.
Our clients' position is that they are the traditional owners of this land, they were not properly consulted in relation to this nuclear waste dump, both in respect of what the government are proposing, and whether they actually consented to it; and that any decision to nominate the land as a nuclear waste dump, is flawed, and the government should not be accepting a flawed nomination.
Damien Carrick: The Northern Land Council has declined to speak to the Law Report, but when they were questioned by a Senate Committee back in 2008, they said there was a comprehensive anthropological report to identify the traditional owners of the relevant land and also to identify how that group within the context of larger groups, makes a decision about that country. They say that they have followed all the processes required of them, and done a full and proper consultation.
George Newhouse: Well if that's the case, why won't they show our clients that report? It's one thing for them to say 'We don't want to reveal it because it's culturally sensitive to the wider public', but they have used that report to disenfranchise and dispossess other groups at Muckaty, and they are not prepared to show them that report. Now why is it secret from the people involved? There's no justification for that, and you have to question what is in that report, when the people who are affected by it haven't had access to it.
Damien Carrick: Again referring to the transcripts of those 2008 Senate Committee hearings, that as part of the process, there were public meetings with people from the five main groups of the area, and there was a full consultation process, and that is transparent.
George Newhouse: Well that is a matter of contention. The people we speak to who are traditional owners have told us there were no adequate meetings, they were not properly consulted, there were private meetings with certain individuals. That doesn't reflect proper consultation, and there were secret meetings where the outcomes were not revealed. Now that's not a proper process, and that will be a matter that will be the subject of the litigation.
Damien Carrick: So tell me, you're going to court on 26th July. What are you seeking from the court?
George Newhouse: Essentially, the most important order that we're seeking is that the court quash the nomination of the land as a waste management site by the Commonwealth. And we do this on the basis that the nomination itself was void. It was a flawed nomination by the Northern Land Council, and it's one that the government should not accept.
Damien Carrick: So at the heart of this dispute is a dispute about proper process, is that how you describe it?
George Newhouse: Look I do think that's at the core of the case. I mean to make it simple, if someone nominated your home and your land as a nuclear waste facility without telling you, I think you'd be concerned. And that's what's happened out at Muckaty. The true owners of the land woke up one morning to find that someone had given away their land for a pinch of salt.
Damien Carrick: There is currently a dispute in the Kimberley over a giant gas processing plant and pipeline, and again, there's a legal fight between on the one hand the Kimberley Land Council and one group of Indigenous people, who want the development to go ahead; and another group who say they are the true custodians, or traditional owners of the land, and they don't want the development to go ahead. So do you see this litigation that you're involved with as part of a wider set of tensions which exist in Northern Australia?
George Newhouse: Yes, I do. I think there are legitimate concerns about the many roles that land councils have to balance. I think they find it very difficult to balance their land-owning, custodianship role, with the development role. I think local councils all around the Australia find it difficult to balance that role, for example when it's their own land and they're promoting a development activity on their land. And ICAC, for example in New South Wales, has set out some very clear recommendations on what local government needs to do when it's considering its own developments. And I think the NLC and other land councils, need to take a good look at what's going on in urban centres, in terms of these sorts of conflicts, and deal with them appropriately.
Damien Carrick: Now we're turning to the litigation you're involved with, I know Martin Ferguson, the minister for resources and energy, has said that look, when it comes to this area of land, railway, gas pipeline and mines in the same area, agreements about those have been reached by consulting with one group of traditional owners, rather than all the Indigenous people of the particular region. So the idea of consulting with just one group, that is widely accepted in this area, and that has happened before.
George Newhouse: Well that's not what I'm being told. The people I speak to and our clients deny that. They haven't gone ahead in the past on the say-so of one clan.
Damien Carrick: Your argument would be that there has been comprehensive consultation in the past, and that hasn't happened in this case?
George Newhouse: I've been told that there's been different processes undertaken in the past.
Damien Carrick: The situation is further complicated by the legislation, which governs this whole proposed development, and there is legislation currently before the federal parliament, the National Radioactive Waste Management Act. What powers, if passed, what powers would that give the government?
George Newhouse: The Muckaty nomination was made under Howard government radioactive waste legislation. The Labor government has a bill in parliament at the moment, that appears to reinstate judicial review, and provides a better pathway for decision-making on the site of a nuclear waste dump. The only problem with it is that Muckaty is exempted from the new structure, and the Muckaty decision is not to be reopened, it's to be ossified, cast in stone under the new legislation. So whilst on the surface the new legislation appears to provide proper consultation processes, proper review processes, it does not do that for Muckaty.
Damien Carrick: The minister has said that there will be a consultation process with both the traditional owners, as identified in the anthropological report, and also all affected groups, people such as your clients, and there also will be a full scientific and environmental assessment before any facility goes ahead. Are you satisfied with that?
George Newhouse: Not at all. That's a process that should have taken place openly and properly with the true owners of that land, before the nomination was made. How is it that a scientific process only takes place after the nomination has been made? It's not appropriate, and the new legislation is of no benefit to the traditional owners of Muckaty station.
Damien Carrick: Sydney lawyer, George Newhouse.
The Northern Land Council and Amy Lauder, she's the traditional owner who negotiated the $12 million deal, have both declined to speak to the Law Report.
Yapa Yapa Elder