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Submission: Inquiry Into the Commonwealth Radioactive Waste Management

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Submission: Inquiry Into the Commonwealth Radioactive Waste Management Parliament of Australia Senate Environment, Communications and the Arts Committee Commonwealth Radioactive Waste Management (Repeal and Consequential Amendment) Bill 2008 Northern Land Council Supplementary submission and response to questions on notice 4 December 2008 2 SENATE ENVIRONMENT, COMMUNICATIONS AND THE ARTS COMMITTEE COMMONWEALTH RADIOACTIVE WASTE MANAGEMENT (REPEAL AND CONSEQUENTIAL AMENDMENT) BILL 2008 SUPPLEMENTARY SUBMISSION AND RESPONSE TO QUESTIONS ON NOTICE 1. INTRODUCTION The Northern Land Council's (NLC's) written submission dated 4 November 2008 emphasised that repealing the Commonwealth Radioactive Waste Management Act 2005 (the Act) would not have a neutral effect, since NT legislation1 which prohibits the establishment of a radioactive waste facility or repository would again be in force. This is the unstated purpose of the Commonwealth Radioactive Waste Management (Repeal and Consequential Amendment) Bill 2008. Before the Senate Committee some witnesses incorrectly claimed – without reference to the statutory scheme or anthropological advice - that the NLC's consultations for the nomination of a repository site on Muckaty Station had not been properly conducted. The NLC responded to these claims during oral submissions on 17 November 2008. Further information in rebuttal is contained in this supplementary submission. Two questions were raised on notice during the NLC's submissions, namely: (i) as to the dates of consultation meetings and the number of attendees;2 (ii) as to the number of people in the Ngapa traditional owning group.3 Responses to these questions are included in the body of the supplementary submission. 2. NLC'S CONSULTATIONS AND ANTHROPOLOGICAL ADVICE 2.1 Explanatory comment The NLC's nomination of a site on Muckaty Station for consideration as a Commonwealth repository was based on comprehensive consultations during 2006 and 2007 and anthropological advice as to the identity of the traditional Aboriginal owners and their consent. In accordance with s 3B(1) of the Act the NLC provided a detailed anthropological report to the Minister then responsible for that statute. The authors of the report were Mr Robert Graham, Dr Brendan Corrigan and Mr Kim Barber. Each has substantial experience as an anthropologist in the Northern Territory (and elsewhere), having respectively received graduate qualifications in 1982, 1993 and 1982, and in the case of Dr Corrigan postgraduate qualifications in 2007. Mr Graham is currently the NLC's anthropology branch manager, and has conducted considerable anthropological research in the general region of Muckaty Station, including in relation to Amadeus to Darwin gas pipeline in 1996, the Alice Springs to Darwin railway in 1998, the Federal Court native title hearing regarding Newcastle Waters Station in 2006, and the nomination of a site for 1 Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004. 2 Hansard Senate Committee on Environment Communications and the Arts, 17 November 2008, p 16. 3 Hansard Senate Committee on Environment Communications and the Arts, 17 November 2008, p 18. 3 consideration as a radioactive waste repository on Muckaty Station in 2006 and 2007. Dr Corrigan also has conducted considerable anthropological research regarding Muckaty Station, particularly in the context of a 2004 agreement regarding the Bootu Creek manganese mine located to the east on the Banka Banka pastoral lease and an associated lease for a haulage road along the southern boundary of Muckaty Station to transport ore to the railway. The site nominated for consideration as a radioactive waste repository is located immediately to the north of the haulage road, and Dr Corrigan conducted research specifically in relation to the nomination in 2006 and 2007. Mr Barber was the NLC's anthropology branch manager at the time of the nomination, has substantial experience over 25 years in the Northern Territory, the Kimberley, Pilbara and Goldfields in Western Australia, and supervised the conduct of research in relation to the nomination and attended all consultation meetings. The report includes significant information regarding sacred sites and matters of cultural sensitivity to Aboriginal people, and was provided to the Minister on the basis that it and such culturally sensitive information would not be published. For that reason the report cannot be provided to the Senate Committee. However, to assist the Committee, relevant information is provided below. This information establishes that the NLC properly, comprehensively and accurately performed its functions in relation to the identification of the traditional Aboriginal owners of the nominated site, the conduct of consultations with traditional Aboriginal owners and other interested or affected Aboriginal persons or groups, and the nomination based on the consent of the Ngapa traditional Aboriginal owners responsible for the site. 2.2 Legal requirements Section 3A(2) of the Act provides that, with the consent of the “traditional Aboriginal owners”, a Land Council may nominate Aboriginal land in its area as a potential site for consideration as a Commonwealth repository. The term “traditional Aboriginal owners” has the same meaning as in the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act),4 and means a local descent group of Aboriginals who “have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land”, as well as a traditional entitlement to forage over the land.5 This requirement is consistent with s 23(3) of the Land Rights Act which requires that a Land Council shall not take action in relation to Aboriginal land unless satisfied that the traditional Aboriginal owners (as a group) consent. The Land Rights Act distinguishes between two groups of Aboriginal persons who may hold traditional interests to land: “traditional Aboriginal owners” (from whom under the statute consent must be obtained, in accordance with traditional or otherwise applicable decision making processes, regarding proposed development),6 and other Aborigines “entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission.”7 4 Section 3 of the Act. 5 Section 3 of the Act. 6 Section 23(3) and 77A of the Land Rights Act. 7 Section 4(1). See also ss 11(1)(a), 23 (especially subsection 3) and 71 of the Land Rights Act. 4 These statutory definitions together with the legislative scheme of the Land Rights Act fully encompass the traditional interests and rights contemplated by the common law term ‘native title’. The function of identifying traditional Aboriginal owners and other interested Aborigines is vested by the Land Rights Act in the responsible Land Council. This function is a continuing task, bearing in mind that the identity of traditional owners may change over time due to births and deaths, or in some cases due to ‘succession’ whereby a neighbouring group may succeed to traditional ownership of land where the original group dies out.8 A nomination cannot be made under the Act (or an agreement entered under the Land Rights Act) unless the responsible Land Council has ensured that the informed consent of the traditional Aboriginal owners (as a group) has been obtained, and that consultation has occurred with other Aboriginal persons interested in the land or affected by the proposal.9 Section 77A of the Land Rights Act provides that the position of the traditional Aboriginal owners (as a group) shall be ascertained in accordance with their traditional, or otherwise agreed and adopted, decision making process. Section 3B(1)(g) of the Act ensures that s 77A is applicable in relation to the nomination of land by a Land Council for a repository. Section 3B(1) of the Act provides that a nomination must contain certain information, including as to the conduct of consultations, identification, and consent of traditional Aboriginal owners. 2.3 Anthropological advice In 1997 the Aboriginal Land Commissioner, Justice Gray, published his report in the Warlmanpa (Muckaty Pastoral Lease) Land Claim No 135 (lodged in 1991), and recommended that all land claimed be granted as Aboriginal land. The hearing was conducted in 1993 and 1994. The evidence before the Commissioner included oral testimony from senior Aboriginal persons, and an anthropologists' report and site register. The land was granted as Aboriginal land in 1999. In his report the Commissioner found that there were various groups whose members are the traditional Aboriginal owners of areas of land on Muckaty Station, namely: • Milwayi (the two snakes); • Ngapa (rain); • Ngarrka (the wild man); • Yapayapa (the uninitiated boys); • Wirntiku (the curlew bird); • Kurrakurraja (the storm bird); • Walanypirri (the pelican). 8 Since colonisation this has usually (but not always) occurred when one group has died out. In Re Waanyi People’s Native Title Application 1995 129 ALR 118 at 130, 131 and 132 Justice French, sitting as the President of the National Native Title Tribunal, found that the common law recognises this concept. See also Mabo v Qld No 2 1992 175 CLR 1 at 61 per Brennan CJ. 9 Sections 5(2) and 23(3) of the Land Rights Act. 5 The evidence before the Commissioner was that each group takes its name from a significant mythological character that is an important element of the estate (as noted in brackets in the previous
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