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Sa Native Title Services From: AGD:Submissions Sent: Wednesday, 18 March 2015 8:39 AM To: [email protected] Subject: FW: Royal Commission - Our role in nuclear energy - response to draft Terms of Reference Thank you for your comments. Your views will be considered by the Government when finalising the Terms of Reference of the Royal Commission. Your comments may be made available to the public. Please advise by return email if you do not consent to your comments being made public. Attorney-General's Department Disclaimer: The information in this e-mail may be confidential and/or legally privileged. It is intended solely for the addressee. Access to this e-mail by anyone else is unauthorised. If you are not the intended recipient, any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on it, is prohibited and may be unlawful. From: Michelle Cioffi [mailto:[email protected]] Sent: Friday, 13 March 2015 2:42 PM To: AGD:Submissions Cc: Karina Lester; Tom Jenkin; Michael Pagsanjan; Mick Starkey; Stephen Bromley; [email protected]; [email protected]; Lawrie-Smith, April (Health); [email protected]; [email protected]; [email protected] Subject: Royal Commission - Our role in nuclear energy - response to draft Terms of Reference Dear Sir/Madam Please see submission from Heads and or Representatives of: Yankunytjatjara Native Title Aboriginal Corporation RNTBC (YNTAC); Far West Coast Aboriginal Corporation RNTBC; Kokatha Aboriginal Corporation RNTBC; Antakirinja Matu - Yankunytjatjara Aboriginal Corporation RNTBC (AMYAC); Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC; Irrwanyere Aboriginal Corporation RNTBC; and, Wangkangurru Yarluyandi Aboriginal Corporation RNTBC. As attached. Regards, Michelle Cioffi Legal Officer (Capacity Development) South Australian Native Title Services Level 4, 345 King William Street ADELAIDE SA 5000 Tel: (08) 8110 2837 Mob: 0408 408 017 Fax: (08) 8110 2811 www.nativetitlesa.org Rear Admiral Kevin John Scarce Royal Commission “Our role in nuclear energy” By email: [email protected] 13 March 2015 Dear Sir, Royal Commission – Our role in nuclear energy – response to draft Terms of Reference On Wednesday 11 March 2015, representatives from the following Prescribed Body Corporates (PBC) met to consider the Royal Commission into Nuclear Energy and the draft Terms of Reference (ToR) now released for comment: Yankunytjatjara Native Title Aboriginal Corporation RNTBC (YNTAC); Far West Coast Aboriginal Corporation RNTBC; Kokatha Aboriginal Corporation RNTBC; Antakirinja Matu - Yankunytjatjara Aboriginal Corporation RNTBC (AMYAC); Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC; Irrwanyere Aboriginal Corporation RNTBC; and, Wangkangurru Yarluyandi Aboriginal Corporation RNTBC. With the support of those present at a meeting, I write to provide to brief response to those terms of reference. First and foremost, we submit that the most important issue His Excellency must consider is that of Aboriginal Peoples’ innate connection to country and the importance of respecting and preserving this for the practice of Aboriginal law and custom. Aboriginal people are significant land holders in South Australia and our legislative right to practice culture – such as gathering, hunting and other cultural activities – needs to be retained and strengthened. We are extremely concerned that the nuclear energy cycle risks the weakening of the rights of Aboriginal people established in the Native Title Act 1993 (Cth), Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA), Maralinga Tjarutja Land Rights Act 1984 (SA), Aboriginal Heritage Act 1988 (SA) and relevant agreements. It would also directly impact the cultural roles and responsibilities the Traditional Owners carry on their manta (lands) in South Australia. Our second submission regards the history of the relationship between Aboriginal people and uranium activities in South Australia. We ask that the Commission consider the Atomic tests at Maralinga in the 1950s and 1960s and review how it has gravely affected communities physically, psychologically, socially and culturally. A number of those present at the meeting on 11 March were directly impacted by the testings, or are descendants of those who were impacted. This includes impacts through long-term health effects, desecration and contamination of lands and sacred sites, the displacement of family members from their land and the subsequent severing of cultural ties to this land. This is significant both because it demonstrates the negative impact that the nuclear energy cycle can have on human lives. It also confirms past and current views of Aboriginal people 2 towards nuclear energy in this state. These views are also evidenced in previous debates we have had in South Australia, including the Kupa Piti Kungka Tjuta 1998 movement and its legacy which we aim to uphold. The ToR should enable the Royal Commission to review this history (including previous Royal Commissions on the Maralinga testing) so that it is able to properly recommend how our state should move forward. Our third submission is that the establishment of this Royal Commission has proceeded rather hastily, failing to engage in any meaningful and robust dialogue with the Traditional Owners of the land. History demonstrates that a failure to do so has detrimental and long lasting effects on Aboriginal people, on their community and their culture. We note that in accordance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), we have the right to provide ‘free, prior, and informed consent’. We consider that the short timeframe within which this enquiry is being held is inconsistent with the UNDRIP. Additionally, tight timeframes place considerable pressure on already under resourced and over committed PBCs. The Commission must address the current inadequacies in process and timeframes, and meaningfully and appropriately engage with Aboriginal Nations to ensure our position is respected, and our voice enabled. Our fourth submission regards the Draft ToR itself. We consider that the language implies that the possible expansion of the nuclear industry is the goal of the Commission. It is our view that this is flawed for two reasons. First, such language reflects that the Commission will not be considering whether a decrease or a maintained level of current activity is more appropriate than expansion. Second, such language fails to provide the Commission with the necessary scope to properly assess the current nuclear fuel activity within South Australia. For example, key phrases such as ‘potential for expansion’, ‘further processing of minerals’ and ‘establishing facilities’ in ToRs 1 - 3 reinforce the unbalanced and expansionist agenda. As a result, we believe the ToR should present a more balanced approach. This includes enquiring as to what are the current practices and regulatory environment against what might be considered best practice, looking at options to maintain the status quo, or a scaling back of activities all together. Moreover, passive language such as ‘measures that might be required’ or ‘might need to be taken’ also need to be strengthened. It would be more appropriate that the ToR direct the Royal Commission to identify ‘what is required’ and ‘will need to be taken’. Accordingly, we consider that the Commission should review the use of that passive language in those terms, particularly when referring to the necessary regulatory frameworks. Of biggest concern is in relation to ToR 4. That draft term provides that the Commission is to consider the establishment of a waste storage facility for the disposal of nuclear waste associated with power generation, industry, research and medicine’. However, the draft ToR fails to also properly refer to the negative impacts that the nuclear fuel cycle can have. That includes the risk it poses on human life, not only those living within proximity to any storage facility but to those transporting waste across land and waters and those living on the lands through which the waste will pass. Consequently, we consider that the wording must be strengthened so as to allow the Royal Commission to give fair and proper consideration of the health impacts on past, current and future generations of Aboriginal communities and the state of South Australia at large. The ToR must also direct the Royal Commission to look at past and current practices in managing nuclear waste in this State. We are concerned about the waste being stored at Woomera, the management of tailings at Olympic Dam, the ‘clean up’ of Maralinga. These are all matters that must be reviewed by the Royal Commission in considering future nuclear waste management. Fifthly, the Commission should take into account the Federal Laws established by past governments on point. These laws have sought to protect, amongst other things, the rights of the Indigenous People and how an expansion of the nuclear industry would undermine the enjoyment of those rights. To reiterate, those rights include the rights to access the land and the unfettered right to 3 hunt, gather, camp and engage in cultural law and custom. Royal Commissions and inquiries of the past have rejected the mining and processing of radioactive minerals and have already reaffirmed broader community views on the rights of Aboriginal People consistent with cultural practices and obligations. Further, such laws and royal commissions already
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