Senate Economics Legislation Committee Hearing

SENATE ECONOMICS LEGISLATION COMMITTEE HEARING

BARNGARLA RESPONSE

2 August 2020 Introduction Although Schedule 1 of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 (Bill) is presented as being necessary to locate the facility at Napandee, this is not the purpose of the legislation. There is no need to pass this Bill to locate the facility at Napandee. This could happen now, or in fact could have happened three months ago by the use of a declaration issued under section 14 of the existing legislation (National Radioactive Waste Management Act 2012 (Cth)).Schedule 1 of the Bill is not about the location of the National Radioactive Waste Management Facility (NRWMF) but about removing judicial oversight of the behaviour of the Department to date. This is concerning in any circumstance, but it is particularly concerning in circumstances where there are a variety of genuine complaints raised about the Department and the site selection process generally.

Barngarla have put forward a proposal to Minister Pitt which will ensure judicial oversight of the process, whilst reducing the risk it could be frustrated on mere technicalities. We hope that Minister Pitt will accept the proposal. This is not the last time that Parliament can determine to locate the facility at Napandee. It is, however, the last time that Parliament can ensure judicial oversight of what the Department has done to date.

Letter to Minister Pitt We have recently written to Minister Pitt with a proposal which would allow for independent judicial scrutiny of the Department’s process, whilst removing any risk that the site selection process could be frustrated in the event that the Department has (contrary to our view) acted appropriately. That letter is attached as Attachment A.

Barngarla are not hard to deal with From the outset we should state that we do not necessarily assert that inaccurate information has been deliberately provided by the Department (or any other party) to the Senate. The Department has changed staff (and its name) during the course of the site selection process. It is possible that this has led to the issues that the Barngarla are experiencing, and so this document should be read with this possibility also in mind. We also note that it has been an exceptional year and this hearing has occurred under highly unusual circumstances. There is every reason to assume that inaccuracies have been by accident. In any event, we consider it appropriate to correct the record.

To be clear, the Barngarla People reject any assertion (to the extent that this assertion appears to have been made) that we have been difficult to deal with. The Barngarla are one of the most engaged native title holder groups in Australia, and have negotiated and dealt with industry repeatedly during the time covered by the NRWMF site selection process. Due to the geography of Barngarla and the large population centres in the Barngarla Determination area, the Barngarla People need to be accessible and attentive to all issues. We understand that some parties to this process, on the other hand, have tried to paint a picture of the Barngarla being unresponsive. We have, therefore, taken the unprecedented step of asking companies which we have dealt with to provide references of their dealings with us during the same time period. These are provided anonymously, and are recorded in Attachment B.

The Barngarla People maintain an email address, called [email protected] which is set up to distribute correspondence to all Barngarla directors of their representative body, the Barngarla Determination Aboriginal Corporation RNTBC (BDAC) who use email. This address has been provided to the Department regularly.

The Barngarla do respect and use their lawyers regularly given the number of projects that occur in the Barngarla Determination area but contrary to the evidence of Ms Sam Chard in the recent Senate Economics Committee hearing, we have not demanded that the

1 Department correspond via our lawyers. We have asked at one point not to contact directors separately by telephone, and again indicated our preference for the contact email. In fact, we have used different legal representatives in different parts of the Kimba/ NRMWF matter, and so the request would not make sense. In fact, our most recent letter to the Department makes it clear we are happy to communicate in writing. This is most recently outlined in a letter to Ms Sam Chard, which is also attached to this document as Attachment E.

Some Aboriginal organisations are very “chair-centric”. However, the Barngarla are very “board-centric”. The Barngarla community have twelve BDAC directors which are all vital to the Governance of the BDAC organisation. The Directors work together on all issues, to ensure all views are accommodated and properly represented. Accordingly, the Barngarla prefer correspondence in writing as it allows for this information to be transparently provided to all the Directors. This is particularly so, given a number of our Directors were born in Kimba and so have a particular interest in this matter.

To be clear, the Barngarla People consider that a number of the assertions which appear to have been made about us are inaccurate. It is obviously not possible for the Senate committee to determine what has happened in the course of a thirty minute hear. However, we provide two examples for your reference:

The Barngarla chairperson, Mr Elliott McNamara, was contacted by Mr Rowan Ramsay earlier this year who requested a meeting with Mr McNamara. Mr McNamara indicated he was no longer the Barngarla chair (he had retired several years ago to focus on his business Walga Mining, but remained a BDAC director– although he was absent from the most recent Board meeting as his wife had just passed away). Mr McNamara indicated, however, that the Barngarla would be happy to meet and that Mr Ramsay should therefore email the Barngarla contact email address to organise a meeting. No email to the Barngarla was ever received by Mr Ramsay.

Whilst trying to ensure that the Barngarla People could have the right to vote, Mr Lez Taylor was at an event where Mr Rowan Ramsay was present. Mr Ramsay indicated that Mr Taylor should not have tried to get a vote in the Kimba ballot and the Barngarla had done the wrong thing by going to Court. Mr Ramsay was rather forceful with Mr Taylor. Mr Taylor, who was born in Kimba found the conflict created by Mr Ramsay very disheartening as all he was trying to do was protect his Country and have a voice about his birthplace.

The Barngarla contact email of course contains confidential information from many companies. However, if an appropriate mechanism could be worked through to preserve confidential information, BDAC would be agreeable for the email server to be audited to show we have never received emails to meet.

A number of other facts should be made clear from the outset:

• The Department did not initiate contact with the Barngarla at all. The contact regarding this matter was initiated/commenced by our lawyers on 7 April 2017.

• The Department did not request a Heritage Working Group until after the Barngarla decided to undertake a heritage assessment of their own. As a result of inactivity in this regard, the Barngarla retained Dr Gorring with their own funds and she attended the proposed sites to try and gain access in early 2018. Prior to that, the Department clearly indicated that there would be no working group until a later Phase (Phase 2) in the process. The first request for a Heritage Working Group was made only after Dr Gorring had attended the proposed Napandee and Lyndhurst sites in February 2018. The letter from the Department of 28 February 2018 stated:

You have asked me [the Department] to consult with the landowners of the Lyndhurst and Napandee nominated sites to facilitate access for Dr Gorring to undertake an assessment of

2 Aboriginal heritage in the Kimba area from 26- 28 February 2018. I trust you will understand that it is not possible as the Department does not have the power to facilitate access to nominated land for the purposes outside of the government’s process to establish a National Radioactive Waste Management Facility…

[The department] has been contacted by [Barngarla Director] requesting that the department provide a presentation to the BDAC board this Saturday 3 March. Unfortunately, due to the late notice, the department will not be available to meet with the BDAC board…

We would also like to set up a regular consultation process with the BDAC Board, and/or a ‘Barngarla Heritage Working Group’.

- Letter from Department to Barngarla

By this point, given the Barngarla People had spent over a year waiting for the Department to consider Aboriginal heritage issues, and had been put to the cost of undertaking their own heritage assessment report, this proposal seemed highly disingenuous at the time. The matter was then consumed by the litigation over the eligibility in the Kimba community ballot, which commenced with half a dozen requests from the Barngarla to be involved in the ballot commencing early/mid 2018. Although, the Barngarla did formerly request that the Kimba District Council hold off from conducting the ballot until the heritage assessment with the Department could occur.

Ultimately, as indicated repeatedly through this matter, we note these kinds of “he said”/”she said” issues are exactly why this matter should be entitled to have independent judicial scrutiny. It is not reasonable to ask Parliamentarians, in their otherwise busy and important roles, to assess pages of correspondences and communications to determine whose version of events is correct. This is consistently a role for the Courts in this country and is why Schedule 1 of the proposed Bill is so concerning.

Access was never arranged to the property There are a number of factual assertions that we do not agree with, and some of these are outlined in the letter to Ms Sam Chard attached as Attachment E.

However, in addition to the matters outlined above, we need to make it clear that we do not agree that Mr Baldock’s son provided Mr Baldock’s number to Dr Gorring. We have asked Dr Gorring about this incident, and she indicated that someone did approach them to ask her and several Barngarala persons what they were doing there, but Dr Gorring was never provided with a phone number or an offer to access the site. We note that Mr Baldock was relaying this story indirectly, so we are not asserting that he knowingly misled the Committee. It is clearly possible that he misunderstood the interaction which occurred.

The contemporary evidence from the matter is in the letters between our lawyers and the Department of the time. Those letters clearly show that no access was forthcoming and that the Department had not offered to undertake any Heritage Working Group until after Dr Gorring attended the area.

We note also that the Department was initially confused about the status of unregistered heritage sites and initially insisted that that there were no registered Aboriginal heritage sites in the area and that this was somehow definitive (in South Australia heritage sites are protected irrespective of registration, and accordingly Aboriginal groups often leave sites unregistered as there is a cost associated with preparing the reports to seek registration and there is no legal benefit from registration).

3 The ballot numbers – turnout We understand that the Barngarla facilitated ballot is sometimes described in disparaging terms of a “40% turnout”.

Firstly, due to logistical issues, and Barngarla community often being away on cultural business, the Barngarla normally never have more than around 80 people attend community meetings. The response to the ballot is entirely in line with attendances at Barngarla community meetings.

Second, the ballot was organised on incredibly short notice as the Kimba District Council undertook it in the middle of an appeal period, whilst the Federal Court appeal was still on foot and about to be argued. The Court did not issue an injunction, however, as discussed below this was because they concluded that the Barngarla would have recourse to judicial review and any issues in respect of the Radical Discrimination Act 1975 (Cth) would apply then. Most notably, Colvin J said at paragraph [48]:1

“Otherwise, there will be no real prospect for significant further harm unless and until the Minister, for the purposes of the process of selecting the site for the Facility, acts upon the outcome of any ballot on the basis that it is an indication of the level of overall community support. It is only then that the claim by BDAC will have significance for the process. Until then, the appeal could not be said to be rendered nugatory as to the principal matter giving rise to the concerns of harm expressed by members of BDAC who have provided affidavits in support of the application.”

-Colvin J

This, however, is what is presently being removed via Schedule 1 of the Bill.

The Barngarla ballot, was therefore, organised on less than a week’s notice.

The Barngarla People should again reiterate their previous proposal which is that they would agree to be bound by a properly run joint ballot as long as the ballot: • Had a proper lead in time, which previously prevented the Barngarla from trying to advise their members with less than one week’s notice; • Included all Barngarla members and all people who should vote including a broader range of additional farmers (the ballot boundary for Kimba being inconsistent with the ballot boundary in Hawker); and • The definition conditions of what “Broad Community Support” constituted was clear in advance of that ballot occurring.

The ballot numbers – percentages It is hard to assess the how best to interpret the numbers of the Kimba community ballot and Barngarla ballot, as it was never made clear by Minister Canavan what “Broad Community Support” meant. However, in summary:

• The Kimba District Council ballot had 824 eligible voters, many of whom lived in Kimba but also many who were non-resident voters. 734 returned votes (89% return rate). 452 votes were in favour and 282 votes were against.

• The BDAC ballot had 209 eligible voters and 83 returned votes (40% return rate). 0 votes were in favour and 83 votes were against.

If you look at eligible voters, then 452 of 1033 (or 43.75%) voted in favour of the facility.

1 Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585

4 If you look at returned votes, then 452 of 817 (or 55%) voted in favour of the facility.

Native Title and the amendment to the Bill When the Barngarla Determination was made by the Federal Court,2 various parcels were recorded as having native title on them and other parcels were recorded as native title having been extinguished. This has no connection to any question of whether the land is significant or not (all land within the Barngarla Determination area is significant for the Barngarla People), but is connected to the western legal tradition. Put simply, a parcel of land which is freehold will have native title extinguished even if there is a heritage site on that land.

The Barngarla Determination also contained a series of maps, where extinguished land is recorded as red and native title land is recorded as blue. One of the maps for the area around the Napandee area is attached as Attachment C.

That map shows that the Barngarla People have significant native title land near the proposed NRWMF site, but not on the site. It also does not appear that the Barngarla People have native title land which will be necessary for the infrastructure of the NRWMF site, and so the amendment to prevent compulsory acquisition of native title, although obviously good from a policy perspective, is largely irrelevant in a practical sense.

What has been lost in this discussion, however, is that the Barngarla compensation entitlement, owed by the State of South Australia and the Commonwealth arising out of historical extinguishment was not resolved at the event of the Barngarla Determination (these matters are often resolved via ILUAs at the same time as Determinations). The effect of subsequent use of extinguished land in a way which damages the community, and the impact this issue may have on compensation was left open in the case of Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7. Obviously given the Barngarla have been precluded from the NRWMF site selection process in a material way, if the facility broadly impacts the Barngarla community’s health, then this issue would need to be considered further. It is hard to comment on this in greater detail, given the developing state of the law.

The Federal Court Litigation under the Race Discrimination Act Contrary to some assertions made, the Federal Court did not determine that it was too difficult to include the Barngarla into the Kimba community ballot. These were not matters before the Federal Court, and the Federal Court was not determining whether the Barngarla People should have been included in the ballot. Rather in a technical sense, the Federal Court considered whether excluding the Barngarla People from the Kimba Council ballot, was a breach of the Radical Discrimination Act 1975 (Cth) (RDA).

The decision of the Court largely turned on the fact that, although the Barngarla People were excluded from the Kimba community ballot because native title was not rateable, other non- rateable property was also excluded from the ballot and so the decision to exclude the Barngarla People was not entirely based on race. The following paragraph from the Full Court decision clarifies the point at paragraph [58]:3

“It is true to say that the s 14 criteria included the possession by a person of an interest in

2 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724; and Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552. 3 Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020] FCAFC 39

5 rateable property in the Council area even if the person did not reside in the area. In that respect it might be said that there was a preference accorded to persons having interests in land that was rateable over those having interests in land that was not (such as land falling within the determination area). It is not insignificant that the non-rateable land in the Council area did not comprise only that land falling within the determination area but included all non-rateable land, irrespective of the race of the person having a recognisable interest in it.”

-Full Court of the Federal Court of Australia

Ultimately, as indicated in the injunction decision referred to above, the Court considered that any issue of the RDA would largely apply when the Minister made a declaration. Again, to refer to the reasoning of Colvin J at paragraph [48]:4

-Colvin J

The Barngarla, as First Peoples for the Kimba area, should have been included in the Kimba community ballot. There was no finding of the Court that this was not possible, or not appropriate. Rather, the Court concluded on a technicality, that because other non-rateable property was also being excluded from the ballot, that the decision to not include the Barngarla People in the ballot could not be said to have occurred because of racial grounds. None of this, however, detracts from the fact that the Barngarla People were excluded and it is hard to understand how Minister Canavan and the Department could determine there was “broad community support” in the circumstances (again, it being noted that it was never made clear what this definition meant in precise terms).

The Importance of Judicial Review We have talked extensively about the importance of judicial review and independent Court oversight of this process. We have also put a proposal to the Minister which we hope will remove any concerns about allowing this oversight to occur.

Whether it be the Bank Nationalisation Case, Mabo (No 2), the protection of union workers in the Patrick Stevedores Litigation, the Tasmanian Dams litigation, or even now in the investigation of COVID-19 in Victoria, the Australian legal system relies on the expertise of the judiciary (and judges and former judges generally) to undertake independent fact finding and apply the law impartially to all parties.

Realistically, the proposal to remove of independent scrutiny of this process is as astounding as it is alarming. It is hard to imagine any Government supporting this approach. We can only consider that fatigue as to the issue (the fact that Government want a location for the facility to be settled) means that people may be willing to consider something which otherwise would be wholly unpalatable. However, even this is misconstrued. Removing independent scrutiny, at the last minute, will just lead to decades of allegations that the process was miscarried. In fact, it is because this process has been so lengthy and controversial that independent scrutiny must be afforded to all interested parties. Not only would Schedule 1 of the Bill set a terrible precedent generally but it will do countless harm to the political legitimacy of the NRWMF site selection process because it will ultimately be

4 Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585

6 seen as an admission that the Government did not consider it could withstand independent scrutiny.

We request that you watch the video prepared by the Barngarla regarding Judicial Review: https://vimeo.com/442068242

It is clear that the purpose of Schedule 1 of the Bill is to remove Judicial Review We note that Ms Reinhardt and Ms Chard of the Department in their evidence to the Senate Economics Committee on 30 June 2020 stated:

Senator PATRICK:…at any time, personally, when you've been involved in discussions, did you talk about this new act, the act that is subject to review today, having the effect of removing judicial review of a decision under section 14?

Ms Reinhardt: I don't recall talking about it in those terms, no.

Senator PATRICK: In what terms did you talk?

Ms Reinhardt: In terms of, sort of, relieving judicial review.

Senator PATRICK: Okay. Ms Chard?

Ms Chard: Likewise. I go to my earlier point that the judicial review would test the merits of—

Senator PATRICK: I understand that. I'm interested in the conversations you had in formulating a decision to go from the old act now to the new act.

Ms Chard: Not in my personal discussions.

Senator PATRICK: So, if I FOI you, I'm not going to come up with anything that talks about judicial review?

Ms Chard: As I've mentioned earlier, the departments engage with the minister on a whole range of legal issues related to the process. In terms of your specific question around the removal of judicial review— Senator PATRICK: It's about motive. I'll be upfront about motive. How much effect did the removal of judicial review have in terms of motive to move to the new act?

We note, however, that Ms Chard subsequently stated in a letter to the Committee Secretary of 10 July 2020:

While I have not identified any corrections required to the Hansard, I would like to provide clarification of a response to a question asked by Senator Rex Patrick. The relevant text in the Hansard can be found at pages 37 and 38.

Senator Patrick asked: …”at any time, personally, when you have been involved in discussions, did you talk about this new act, the act that is subject to review today, having the effect of removing judicial review of a decision under section 14?”

While I did not recollect personal discussions about the new legislation having the specific effect of “removing judicial review of a decision under section 14”, on review, I can confirm that I have been involved in policy discussions about the proposed legislation having the effect of reducing or avoiding the risk of potential legal challenges, including judicial review. Consideration of legal risk is a routine aspect of policy deliberations.

- Letter of Ms Chard

We have not yet received the responses to all of the questions taken on notice by the Department and so cannot comment on those.

Department of Defence and Woomera The Department of Defence stated in their evidence before the Senate Economics Committee on 30 June 2020:

In terms of the two sites within the Woomera Prohibited Area, both are mainly within the red zone and subject to continuous use and direct support of testing defence capability. One of the sites comprises 13 separate Defence owned land parcels and includes the operational military airfield and explosive ordinance storage area. As a result, the sites are subject to access restrictions for safety and security during Defence activities. The other site, in proximity to the Woomera Prohibited Area, supports development and testing of counter-improvised explosive-device capabilities for the safety and security of Australian Defence Force personnel deployed on operations. It is also of significant cultural importance to the Kokatha and Barngarla Aboriginal peoples.

Following this statement, the Barngarla wrote to the Department of Defence on 15 July 2020 to provide clarification on the Barngarla’s interests at Woomera Prohibited Area given that the Department of Defence had not undertaken any consultation with the Barngarla regarding Woomera and should, therefore not make representations for the Barngarla People regarding their interests in this area. In return correspondence they apologised. They indicated

Dear Barngarla People,

Thank you for the letter you sent to me last week regarding my evidence before the Senate Economics Legislation Committee’s inquiry into the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 on 30 June 2020. I would like to take the opportunity to apologise for any offence that my remarks might have caused the Barngarla People. The Department of Defence values our relationship with the Barngarla People, and I had certainly not intended to say anything inappropriate in regards to the Barngarla People, or our mutually beneficial relationship.

- Letter of Defence

We attach the entire set of correspondence as attachment D.

We note that the Department in its response to questions on notice also stated: The assessment for the three sites is included in the response documents to Question No.1.

Additionally, in July 2017 the Department of Defence advised the following in relation to the three sites:

Site 339 – Woomera (Nurrunga Test Area): south of Woomera and the WPA

This Defence-owned land parcel is approximately 1,463 hectares and has been identified as the Nurrungar Test Area (NTA). It lies approximately 10 kilometres south of the Woomera Prohibited Area (WPA) boundary, in Woomera. The NTA houses the Joint Counter Improvised Explosive Device (JCIED) Test Facility which supports the development and testing of Counter Improvised Explosive Device capabilities for the safety and security of Australian Defence Force personnel, deployed on operational duty. Nurrungar also has Commonwealth heritage values and is of significant cultural importance to the Kokatha and Barngarla Aboriginal people. Siting a NRWMF within the NTA could result in the loss of essential Defence capability and present unintended consequences that could adversely affect operational capability that supports national security.

8 This is clearly just copying the incorrect information from Defence. In any event, it is not accurate and should be withdrawn as a statement.

In summary, two Departments have indicated a position of Barngarla which is not correct. The Defence Department has apologised for this.

Human Rights Committee The Barngarla confirm that they endorse the findings of the bi-partisan Parliamentary Joint Committee on Human Rights Report 4 of 2020 dated 9 April 2020. The relevant parts are reproduced below:

[2.167] Given the nature and extent of the consultation with affected Indigenous groups and the unanimous opposition of Indigenous groups to the nomination of the site, it appears that the right of indigenous peoples to influence the outcome of decision-making processes affecting them may not be sufficiently protected by this bill.

[2.168]... [I]n relation to any cultural and spiritual significance attaching to the land itself, it remains unclear how this would be protected once a radioactive waste facility is operational on the site. Further, it is unclear how Indigenous people will be able to access sites of cultural significance, should they be determined to exist.

[2.169] In conclusion, noting the clear opposition of the Barngarla Peoples to the specification of Napandee as the site for the establishment of a radioactive waste facility, and the potential for the site to impact on Indigenous cultural heritage, the specification of this site may impermissibly limit the right to culture and self- determination

Report 4 then outlines that the official Committee View of the Bill is:

[2.172] Noting the stated opposition of the Barngarla peoples to the specification of Napandee as the site for the establishment of a radioactive waste facility, and the potential for the site to impact on Indigenous cultural heritage, the committee considers there is a significant risk that the specification of this site will not fully protect the right to culture and self-determination.

9 Attachment A – Letter to Minister Pitt

1 August 2020

The Hon Keith Pitt MP Minister for Resources, Water and Northern Australia Parliament House Canberra ACT 2600

Dear Minister Pitt

National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 — Proposal to Issue a Declaration under section 14 of the Existing Legislation

Thank you for the offer to meet on 21 July 2020. We had intended to take you onto important Barngarla native title land immediately adjacent to the town of Whyalla to show you some of the solar projects that we are developing with industry, including one of the projects where we will be part owner.

The reason why we wanted to meet privately, rather than by video conference, is that we would like to discuss with you our concerns regarding the conduct of the Department to date. This, of course, is hard to do with the Department present. We had originally had very useful discussions between our legal representatives and Mr Gerard McManus who we understand to be in your office. This, however, was then taken over by Mr Shane Holland, who we understand is within the Department. In any event, due to time constraints created by the Senate inquiry process, we will now need to outline in writing what we wanted to discuss with you in person. We reiterate, however, that we are very amenable to discussing this with you and your office directly, rather than the Department.

To be clear, we consider that the Department under previous Minister Canavan, miscarried the National Radioactive Waste Management Facility (NRWMF) site selection process. We are not the only group of people to think so. You would also be aware, that there are considerable complaints from other members of the community, in particular many farmers in the Kimba community.

We understand that the Department has made a number of comments about our accessibility. These comments, as best as they have been relayed to us, are not accurate. We are a very accessible group and take pride in understanding what is happening on our Country. During the course of the NRWMF site selection process, we regularly engaged with industry without any problems whatsoever, and have approved various mining exploration, taken share ownership of port developments on the Eyre Peninsula and Solar Projects to name just a few. In fact, as a result of the statements made about us by the Department, we have asked some of our friends in industry to provide their views of their dealings with the Barngarla Community and our representative Board for the Barngarla Determination Aboriginal Corporation RNTBC. These companies were companies that we negotiated agreements with during the same time period as the NRWMF site selection process was being undertaken. We have agreed to keep their comments anonymous. However, we attach them to this letter as Schedule 1.

11 The Barngarla People spent considerable time trying to engage with the Department, in particular when Mr Bruce Wilson was involved. However, we found that the Department had no interest in dealing with us on any matter of substance, and their approach was superficial and dismissive at best.

We appreciate that you were not involved in these matters, and so we are hopeful that you will take the following proposal on face value.

The Barngarla People are largely a pro-development group, with many Barngarla not necessarily opposed to the establishment of a nuclear waste facility somewhere in Australia. However, the process to date, has hopelessly miscarried. In response to this, the Department appear to have suggested the use of new legislation to legislate the Napandee site directly.

To be clear, there is no legal reason for Schedule 1 of the Bill, except to remove judicial oversight of what the Department has done to date. We understand that the Department will argue that Schedule 1 of the Bill has other purposes. This, in our view, is simply not true. In any event, we consider that we have a solution which should alleviate all concerns.

Before we outline our solution, we consider it important to make this point. Having independent scrutiny of Government action by the Court system benefits both sides of politics. It is a critical element of the Australian legal and Constitutional framework and should not be abandoned, especially in such a knee-jerk manner at the end of a long process. All that removing judicial scrutiny of the Department’s conduct will do, at this point, is lead to calls of illegitimacy, and a decade long debate about whether there should be a Royal Commission into the NRWMF site selection process. Rather, allowing judicial review would resolve the matter in its entirety. In the event that the Department has done what it states it has done, and acted transparently with robust systems, then the judicial review will not be successful and there will be no questions of legitimacy. In the event that this judicial oversight does show a significant miscarriage then it will make the declaration invalid but, in these circumstances, the declaration should be invalid because there was a major failure in the Department’s conduct. We would all then be aware of this, and the various parties could act accordingly, with those facts having been established independently. Given you were not the Minister involved in the NRWMF site selection process you would therefore be perfectly positioned to address the consequences of any such findings and could provide fresh leadership for the Government on these issues.

We understand that some people will try to argue that this will open the door for lawyers to run creative arguments. Our proposed solution will remove this concern. However, we should state that this is not what judicial review is about. Judicial review, as we are sure you are aware as your role as a Minister, is not about remaking the decision. All that judicial review will assess are issues such as bias, illegality, procedural fairness, error in taking into account the wrong considerations and matters which go to whether the process has miscarried, not whether the decision to locate the facility at Napandee is the best one.

Hundreds, perhaps thousands, of administrative decisions are made every week in Australia, at every tier of Government. Scrutiny of these decisions is nothing to be concerned about within the Australian framework. Again, because you were not the relevant Minister during the site selection process, we consider it likely that you will have no immediate concern about ensuring independent scrutiny of the Department.

Parliament will never lose its power to legislate the site for the facility directly, if it so choses. It has the power to do so now, or in three months’ time or in twelve months’

12 time. Subject to Constitutional validity, there is no Court oversight of Parliament’s decision making. Schedule 1 of the Bill, therefore, is not the last time that Parliament can determine to locate the facility at Napandee. It is, however, the last time that Parliament can ensure judicial oversight of what the Department has done to date.

We understand that one argument, however, will be that there will be these “technicalities” and the declaration could be invalidated due to “clever lawyering”. As indicated above, we consider this misunderstands judicial review. However, our solution is as follows:

• We request that you make the declaration under section 14 of the existing legislation to allow judicial oversight of what the Department has done;

• The Barngarla People, will however, agree to work with the Government (and if appropriate the Opposition and other interested political parties) to develop a list of these supposed “technicalities”;

• In the event that the declaration is invalidated on a mere “technicality” and not a matter of substance, then (subject to an appropriate agreement being reached) the Barngarla People would not campaign against the Government proceeding with Schedule 1 of the Bill. This would allow Parliament to avoid a situation where the site selection process was frustrated by a mere “technicality”; and

• If, however, the judicial oversight shows that the matter has been miscarried by the Department (which to be clear, the Barngarla People consider it has), then the Government would need to accept the site selection process has failed and act accordingly.

We remain committed to discussing this matter with you at any time, and are immediately agreeable to start working through the framework of any agreement, noting that for it to become operational, we would need to provide it to the entire the Barngarla Community for endorsement.

Separate to this, the Barngarla People should again reiterate their previous proposal which is that they would agree to be bound by a properly run joint-ballot (i.e. a ballot including both Barngarla members and the persons who participated in the Kimba Council ballot) as long as the conditions of what “Broad Community Support” constituted was clear in advance of that ballot occurring.

As you can see, the above matters are likely to be opposed by the Department, as the Department is the body which is seeking to avoid scrutiny of its conduct. We note that it has been relayed to us that the Department often outlines a history of this matter which is inconsistent with what we say has occurred. Obviously, we cannot, nor do not expect you to resolve this dispute over what has happened by reading one letter. However, we do note that in our experience (and we would assume your experience in politics) that in a “he said / she said” scenario, the party which is trying to remove independent oversight is normally the party whose account is likely less accurate.

We end this letter by asking you, as a Minister on the conservative side of politics, to reflect where that side of politics would be if there was no independent judicial scrutiny of Government action. For example, it was the Court system which ensured that the Chifley Government did not nationalise the Banks all those years ago. Likewise, on our side of politics (although as shareholders and investors in major projects on the Eyre Peninsula, our “sides of politics” we believe are more largely aligned than you may imagine) native title was recognised first by the Courts before Parliament. Even now, the expertise of independent judicial officers is being used to ensure a professional

13 assessment of what has occurred in Victoria in respect of the recent COVID-19 catastrophe in that State. The point is not to see these previous moments of Australian history as a product of two sides of politics but rather to appreciate that without the professionalism of the Court system to undertake fact finding to ensure appropriate Government action, we all lose.

Sincerely, The Barngarla People Barngarla Determination Aboriginal Corporation RNTBC ICN 8603

Schedule 1

The following quotes are provided by proponents from the Energy Industry and the Transport Industry regarding their dealings with the Barngarla Community in relation to projects that have been undertaken within our Native Title Determination Area. These dealings all occurred concurrently with the NRWMF site selection process:

“We have consistently found the Barngarla Community, through the Barngarla Determination Aboriginal Corporation (BDAC) and its advisors, to be a very well organised and responsive organisation to negotiate with. We were provided with very prompt access to the BDAC board who established a very efficient process to conduct negotiations and complete the process in a timely manner. The BDAC board sought to fully understand what we were seeking to achieve and clearly articulate what was important to the Barngarla Community. This allowed for a mutually respectful and constructive environment for negotiations. Following successful conclusion of negotiations, the responsiveness has continued to be of a high standard, and we continue to have a very respectful and constructive relationship through BDAC and its advisors.”

“The Barngarla have been incredibly good to deal with. From the first board meeting where we met the BDAC directors, to regular contact with their directors and their lawyers they are always available. We consider that they are one of the most professional and sophisticated Aboriginal groups we have ever dealt with. From the use of their Barngarla Contact email, which goes through to all directors, to their ability to respond quickly to any needs of the project to their engagement generally with industry they are excellent on all counts. We were particularly pleased to be able to organise them attending and then speaking at an industry event not that long ago. This ultimately led to their contribution at that event being an incredibly important part of the broader dialogue for the industry. In summary, we have enjoyed working with the Barngarla and look forward to continuing to work with them in the future.”

15 Attachment B – References

Attachment C – Native Title Map of the Area

18 135°E 136°E 137°E 138°E NNTR attachment: SCD2016/001 Lake Schedule 2 - Part A - External Boundary - Part 1 of 2 Yellabinna Page 1 of 23, A3, 23/06/2016 Lake Gairdner Lake Torrens Torrens Regional Reserve [varied by court order 06/04/2018] National Park Lake Gairdner OH(Childara) OH(Gairdne r) National Park OH(Torrens)

Lake ) rachilna (Pa OH Oodna datta Macfarlane Coob ePe r dy 32°S 32°S Pureba Conservation Park LeighCre e k Tarcoola

Ceduna P ortAug u sta

Wirru lla P ortLincoln OH(Ya rdea ) Adelaide P ortAug u sta OH(Stre a kyBay) OH(Port Aug u sta) Gawler Gawler Ranges Ranges National Park CP (Orroroo) OH Mou ntGam b ier Lake Gilles IronKnob Stre a kyBay Pinkawillinie Lake Gilles Barngarla Determination Area Conservation Conservation Whyalla CP Park Park

33°S Wh yalla 33°S Kulliparu Wu dinna External boundary of Conservation P ortKenny Park Kimb a Determination Area Ironstone Hill Eyre Peninsula Conservation Park Mapsheet 1 of 46 Hambidge Munyaroo 0 20 40 60 WPA Conservation OH(Wh yalla) Park kilom e tres OH(Elliston)

Lock OH(Kimb a ) MapDatum GDA94 :

Bascombe Well (Burra) OH Elliston Conservation Park Cowell ExternaBou l ndayof Determ ina tionArea Franklin Harbor Conservation Park Hincks OutHundreof ds WPA ArnoBay P aRese rk/ rve 34°S 34°S

P ortNeill

Southern Ocean Spencer Gulf Cum m ins

Tum bBay y Yorke Cadastraldata sou rcedfrom OH(Lincoln) Depa rtme ntPlanning,of Transport Infrastructure& SA Peninsula Ma15 2016 y OH(Gree nly) OH(Ma itland) Sir Joseph Banks Group LakeTorrens sh orelinerefere ncedto GEODATATOP O250K–Series 3 CoffinBay Conservation Park ©Comm onwea lthAustraliaof (Ge oscienceAustralia) Coffin Bay OH (Adelaide) OH National Park P ortLincoln DISCLAIMER Thisma pha sbe e nproduced from data or docum e ntsof varying a ccuracyand sou rces.The State Souof thAustralia expre sslydisclaims Gulf a lland any liab ilityto any pe rson,in re speanythof ct ingdone or om itted tobe done byany pe rsonin re liance,whe the rin pa rtor entire upon ly, St Vincent thewhole or any pa the rtof inform a tionprovided on this ma p. Lincoln Memory Cove National Park WPA 35°S 35°S

135°E 136°E 137°E 138°E LSGGISUnit 2015045_053_Dete rm ina tion_Are a _Bou ndary

19 20 21 22 Attachment D – Letter and Email with Department of Defence

23 From: Birrer, Chris MR Sent: Friday, 24 July 2020 3:58 PM To: Barngarla Determination Aboriginal Corporation Cc: Hazel, Jessica MRS Subject: RE: National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 [SEC=UNCLASSIFIED]

UNCLASSIFIED

Dear Barngarla People,

My reference to the Barngarla People was in relation to the Defence facility at Nurrungar, rather than the Woomera Prohibited Area. I think the relevant quote can be found on page 22 of the transcript pdf, where I said:

Mr Birrer: Thank you for the opportunity for the Department of Defence to appear today before the committee. With the committee's indulgence, I'll provide just a short summary of the Department of Defence's involvement in the development of options for the siting of the National Radioactive Waste Management Facility. In May 2017, the then Department of Industry, Innovation and Science sought Defence's advice to determine if a suitable location for the National Radioactive Waste Management Facility could be found within the Defence estate. The request identified four Defence owned sites which comprise a collection of separate parcels of land as potential locations for the National Radioactive Waste Management Facility. Two of those sites lie within the Woomera Prohibited Area. One site lies outside of but in proximity to the Woomera Prohibited Area. Based on the Department of Industry, Innovation and Science's site selection criteria, the Defence assessment determined that the siting of the National Radioactive Waste Management Facility at any of the four sites identified in the request could not be achieved. In terms of the two sites within the Woomera Prohibited Area, both are mainly within the red zone and subject to continuous use and direct support of testing defence capability. One of the sites comprises 13 separate Defence owned land parcels and includes the operational military airfield and explosive ordinance storage area. As a result, the sites are subject to access restrictions for safety and security during Defence activities. The other site, in proximity to the Woomera Prohibited Area, supports development and testing of counter-improvised explosive-device capabilities for the safety and security of Australian Defence Force personnel deployed on operations. It is also of significant cultural importance to the Kokatha and Barngarla Aboriginal peoples.

The full Hansard transcript can be found at:

https://parlinfo.aph.gov.au/parlInfo/download/committees/commsen/3ae991cf-74a3-4f9e-9f5c- fbc6fccebdf2/toc_pdf/Economics%20Legislation%20Committee_2020_06_30_7836.pdf;fileType=application%2Fpdf#search=%22committees/commsen/3ae991cf- 74a3-4f9e-9f5c-fbc6fccebdf2/0000%22

I would like to take the opportunity to apologise for any offence that my remarks might have caused the Barngarla People. The Department of Defence values our relationship with the Barngarla People, and I had certainly not intended to say anything inappropriate in regards to the Barngarla People, or our mutually beneficial relationship.

Regards,

Chris

Chris Birrer First Assistant Secretary Infrastructure | Department of Defence

BP26-2-A002 | Brindabella Park | PO Box 7901 | Canberra BC | ACT 2610

I acknowledge the Traditional Custodians of Country throughout Australia, recognise their continuing connection to traditional lands and waters and pay my respects to their Elders both past and present. I also pay respect to the Aboriginal and Torres Strait Islander men and women who have contributed to the defence of Australia in times of peace and war.

IMPORTANT: This email remains the property of the Department of Defence. Unauthorised communication and dealing with the information in the email may be a serious criminal offence. If you have received this email in error, you are requested to contact the sender and delete the email immediately.

From: Barngarla Determination Aboriginal Corporation Sent: Wednesday, 15 July 2020 1:45 PM To: Birrer, Chris MR Cc: Hazel, Jessica MRS

24 By Email:

15 July 2020

Mr Chris Birrer First Assistant Secretary Infrastructure Department of Defence PO Box 7925 CANBERRA ACT 2610

Dear Mr Birrer

National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020

The Barngarla Determination Aboriginal Corporation RNTBC ICN 8603 (BDAC) is the Federally-recognised representative body for the Barngarla Native Title Holders.

We write to you regarding the recent Senate Economics Legislation Committee hearing which took place on 30 June 2020, where representatives from the Department of Defence (Department) appeared to give evidence before the Committee for the inquiry into the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020.

Several representatives of BDAC watched this hearing and noted that the Department made reference to the Barngarla People in their evidence to the Committee. This was done without any consultation with our community. We note that some of these comments referred to the significant cultural importance of the Woomera Prohibited Area to the Barngarla People.

We make clear that any comments from the Department which seek to make representations on the Barngarla’s behalf, to the Committee, are highly inappropriate. The Department has not undertaken any consultation with the Barngarla regarding the Woomera Prohibited Area and should in no way speak for the Barngarla People’s interests in this area either in general or for the purposes of the Government’s proposed National Radioactive Waste Management Facility. The Barngarla People, to be clear, do not support the National Radioactive Waste Management Facility in its intended location at Napandee and to the extent that Woomera may be an alternative to Napandee, the Barngarla are of the view that this should be considered fully before they are asked to take any kind of position. Your attempt to pre-empt this, without our consent, was highly inappropriate.

We will be responding to all of the evidence given to the Committee comprehensively, including the evidence of the Department.

Sincerely,

The Barngarla People

Barngarla Determination Aboriginal Corporation RNTBC ICN 8603

25 Attachment E – Letter to Department

26 By Email:

2 August 2020

Ms Sam Chard General Manager Australian Radioactive Waste Agency Industry House- 10 Binara Street Canberra City ACT 2601

Dear Ms Chard

National Radioactive Waste Management Facility (NRWMF) Process

We refer to your letter of 30 July 2020, received by email on 31 July 2020.

Firstly, we would like to thank you for the useful information contained in the letter. The Barngarla maintain a board focussed, not a chair focussed organisation and so having this information contained in written form is very useful as it allows us to relay it to all twelve Barngarla Directors.

Notwithstanding the information in the letter, we would like to indicate from the outset that we do not agree with a number of the statements contained in the letter or otherwise recently made by the Department. We appreciate that you were not managing this process for the Department during 2017 or 2018 and you may not be aware of these issues. We are largely trying to clarify these matters because we understand that these incorrect statements have been made at the Senate Economics Committee Hearing and we consider it important to ensure that important matters are corrected so that Parliamentarians have the benefit of making any future decision with the correct information at hand. We list some examples here; they are not exclusive:

• You have indicated that we were not available to meet with Minister Pitt by video conference. This is not an accurate reflection of the situation, and also ignores that we had contact from the Minister’s office which was inconsistent with the contact from the Department. In any event, we have written to Minister Pitt to outline what we wanted to discuss with him privately. Unfortunately, because you have put your letter before the Senate Economics Committee, we will now need to provide our letter to the Minister to that Committee. Whereas we had hoped to try and raise these matters privately at first instance, your letter now requires that this information also be distributed to the Senate.

• We note that you state that the Department has been trying to organise a Heritage Working Group since 2017. This is not correct. In 2017 we were expressly advised that a Heritage Working Group was not available and would not occur until a later phase (Phase 2). Due to our concerns we retained Dr Gorring to undertake a site assessment. By this point, we had waited over twelve months since the two Kimba locations had been nominated as potential sites (and some ten months since we had first contacted the Department) for a heritage assessment to occur. Although we had received no response to our requests for heritage assessment in the preceding ten months, immediately after Dr Gorring attending the area, the Department changed its position. It was after Dr Gorring attended and only then, that the Department proposed convening a Heritage working group. However, by this point, it was seen with some concern as the Department was seen to be solely reacting to our expert attending the area, rather than providing a genuine proposal. The matter was further taken up, and because the Department could not accommodate the needs of it whilst the litigation against the Kimba District Council was occurring, it became very difficult to organise.

27 • We note your evidence in the Senate Economics Committee Hearing on 30 June 2020, where you stated: “We have sought to comply with the protocols that were requested of us by BDAC, that's the Barngarla Determination Aboriginal Corporation, which is the representative body for the Barngarla people. They requested that all of the department's engagement with BDAC and the Barngarla go through their legal representatives.”

• However, our position has always been that we are contactable via the Barngarla contact email address. In fact, on 23 June 2020 some seven days before your evidence to the Senate Economics Committee, our lawyers emailed you and stated: “Without trying to be critical, your request is largely a request which would be better sent directly to the Barngarla contact email, rather than addressing us and copying them in”. Clearly, even our lawyers have indicated that you should contact us directly on our email address. This is obviously inconsistent with the statement made to the Senate Economics Committee Hearing.

We raise this not to create embarrassment, but because we consider it important to clarify the record. We also want to make it clear that we are always contactable via the Barngarla contact email: [email protected]

The main obstacle, however, in progressing matters is the fact that the Department has asked the Government and Parliament to exclude them from independent judicial oversight. Respectfully, we consider it more appropriate to deal directly with the Minister’s office on this issue.

We have written to Minister Pitt outlining how we consider this matter could progress, in a way which both respects the importance of the Australian legal constitutional framework and prevents the possibility of the NRWMF being held up on mere “technicality issues”. We consider it appropriate to allow the Minister to respond first, before we address the issues in your letter, out of respect to his role in the Government.

The concerns that the Barngarla have, are directed at the conduct of the Department under Minister Canavan and in no way involve Minister Pitt. In fact, the Barngarla consider that working with the new Minister may facilitate a “circuit breaker” on a number of these issues. We note that many parties have concerns about the role of the Department under Minister Canavan. The Barngarla are very agreeable to meeting or discussing matters with Minister Pitt given his lack of involvement to date in the failed site selection process.

The Barngarla consider that the first step in this process is to receive a response from the Minister to our proposal to resolve matters. In the event that the Minister agrees with the Barngarla proposal then we are very happy to work with the Minister’s office to resolve matters.

In respect of the maters raised in your letter, we thank you for the confirmation and this information. As a threshold issue, there remains the problem of the lack of engagement with the Barngarla, and the lack of judicial oversight of what has occurred. However, in the event that these matters are resolved with the Minister, the Barngarla of course are agreeable, where appropriate, to working through any matter raised in your letter to the extent that they remain relevant.

Sincerely, The Barngarla People Barngarla Determination Aboriginal Corporation RNTBC ICN 8603