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Senate Economics Legislation Committee Hearing

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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.
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