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Tuesday, 28 February 2012
Page: 1062


Senator LUDLAM (Western Australia) (17:11): I thank the minister. That being the case, it probably makes sense to backtrack a bit from where we were earlier and move back to Greens amendment (4). I seek leave to move amendments (4), (5) and (12) on sheet 7037 together.

Leave granted.

Senator LUDLAM: I move:

(4) Page 6 (after line 11), after clause 5, insert:

5A Requirements for nomination by a Land Council

A nomination made under section 5, or taken to have been made under section 5, is of no effect for any purpose under this Act unless:

(a) the Land Council, in nominating the land as a potential site, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976; and

(b) the nomination of the land as a potential site was made by the Land Council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976.

[nominations must comply with Land Rights Act]

(5) Page 6 (after line 11), after clause 5, insert:

5B Application of Schedule 2 to nomination by a Land Council

(1) Despite subitem 1(1) of Schedule 2, a nomination under section 3A of the old radioactive waste law which does not comply with subsection 5(2) is invalid and of no effect for any purpose under this Act.

(2) In this section:

commencement time means the time at which item 1 of Schedule 1 commences.

old radioactive waste law means the Commonwealth Radioactive Waste Management Act 2005 as in force immediately before the commencement time.

[additional requirements for continuing nominations]

(12)    Page 11 (after line 16), after clause 9, insert:

9A Requirements for approval

An approval under section 9, or taken to have been made under section 9, of land nominated by a Land Council is of no effect for any purpose under this Act unless:

(a) the Land Council, in nominating the land as a potential site, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976; and

(b) the nomination of the land as a potential site was made by the Land Council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976.

[nominations must comply with Land Rights Act]

I suppose I should not express great surprise that the government has sought legal advice and has probably been told by the minister in the other place to get stuffed and that there will be no tampering with his bill. I will continue my remarks in support of these amendments in the hope that perhaps Senator Scullion, who has been listening in on the entire debate since it began, will exercise his balance of power role in the chamber and advise his colleagues to vote for these important amendments.

In undertaking the kinds of consultations and the processes of gaining consent, not just for a project like this but for any project, a land council is under a procedural fairness duty at law to give Aboriginal people whose rights, interests or legitimate expectations are affected an opportunity to be heard. That is part (a). Part (b) is to be free from bias. These requirements are normally enforceable under the Aboriginal Land Rights (Northern Territory) Act to stop the land council doing something in breach of those requirements, except where the action has already resulted in Aboriginal land being transferred to another party without that party procuring it with fraud.

Procedural fairness is not some kind of nicety. It is not something that you add as an afterthought and it is certainly not something that you would pull out of a piece of legislation such as this. It is vital to ensuring that the right decision or outcome is actually reached. In this case, that means that the right Aboriginal people under the meaning of the Aboriginal Land Rights (Northern Territory) Act consented to the nomination. The act provides that basic protection and, up to a point, it has worked in the Territory. It has certainly worked more effectively than the native title framework has worked.

In this instance, the Northern Land Council was under a statutory obligation to assist the applicants in pursuing their claim to be recognised as the traditional Aboriginal owners of the land in question. In particular, it was obliged to arrange for legal assistance for them at the expense of the Northern Land Council. The capacity of the applicants to look after themselves was seriously eroded by their lack of legal and anthropological assistance. These issues were matters of the gravest concern to the parties involved. They involved questions going to the spiritual responsibility of competing claimants and they are questions which arose in the framework of a unique piece of legislation. The issues of fact and of law were extremely complex. The duty of procedural fairness is critical to ensuring that consent is actually given to an acquisition of land. Normally this is a legally enforceable obligation until the point at which land is transferred without fraud. By virtue, however, of the 2005 act and the 2010 bill this was unenforceable at all times prior to land being transferred to the Commonwealth, particularly after a nomination was made.

I recognise, and presumably the minister will remind us, that under the Aboriginal land rights act the term 'traditional owner' gets thrown around pretty loosely in some instances by people who are not familiar with the term. It is a term in common currency that has a very specific and formal legal definition under the land rights act. The problem that we have in this instance is akin to something I remarked on earlier in the debate, that the mining industry, governments or a particular department wanting to host a toxic waste facility will turn up, draw a rectangle on the ground and then go looking for the right person to speak to for that rectangle on a map under the terms of the land rights act.

What has happened in the instance of Muckaty is that people have stood up and said that they are the right people. As a whitefella from a long way away, I am not qualified to adjudicate in their cause. They said that they were the right people to make that nomination, and the Northern Land Council has in turn said that the nomination was received in good order and it was transferred to the minister's desk—the previous minister who handed it on to Minister Ferguson. This has sidelined a huge number of people who consider themselves as legitimate traditional owners under the formal meaning of the land rights act, in that they have obligations or responsibility for country that will be directly impacted by the imposition of this facility.

That does not necessarily mean that they were born within the rectangle that we put on the map. It does not necessarily mean that they have spent their whole lives giving evidence to anthropologists to put those views on the whitefella's legal record. But it does mean that they have a genuine grievance in that, as we have discovered in the course of this debate, they do not believe that the land was correctly forwarded to the Northern Land Council and then on to the minister. In fact, they dispute intensely that the person who has put the nomination forward is the person with the sole responsibility and sole ability to put forward land that they will not get back because of the use for which it was forwarded. Nobody is ever going to be able to occupy that country in the same way again, because it is going to be surrounded with barbed wire—as you would hope for a facility of this kind—and the access corridor is going to have some kind of similar restriction. There will be severe restrictions to movements of people on and off that country. They will never get it back.

I think there are clauses in the bill that provide for the return of the land after a couple of hundred years. It is comic in a dark kind of way that their descendants in a couple of dozen generations will be able to return. Presumably the shed-like structure will be removed if it has not been converted into an international high-level waste dump in line with some of the more unhinged contributions made in the House of Representatives. They will get the land back, the shed will be taken away, but the ticking in the low-level material which is currently hosted and guarded at Lucas Heights will have faded to approximately background. That material will no longer kill you or give you cancer. It will have faded away through 10 half-lives of the longest-lived isotope to material that can be safely handled.

However, that is not the material in question. Even though the government and the opposition talk about it a lot—the gloves, the lab components, the bits and pieces, the spent sources and engineering stuff—that is not the concern. The concern is what would have happened to the several hundred or thousand cubic metres of long-lived intermediate-level waste that is being left there in the interim and for which there is no final disposal option? I think that is the real question here: will they get their land back in 300 years or will they not? The duty of procedural fairness which this amendment goes to is critical in ensuring that consent is given to an acquisition of land. Normally this is a legally enforceable obligation until the point at which land is transferred without fraud.

The 2010 bill and the 2005 act are not designed to give information to traditional owners about what the land would be used for as they do not generate any information about the project. The regime is not a land-use approval regime and it is not tied to one. It does not require details of a proposed land use to be proposed for consideration, and approval of that land use does not need to be constrained to the scope of the proposal. Rather it is simply what we are debating today, a regime for excluding state and territory laws and for quite aggressively, in my view, acquiring property rights. Land owners therefore have no concrete details of what is proposed, no ability to constrain their approval to details which are given and on which they base their decision and no critical information about the proposal. For example, this is different to mining proposals under the Aboriginal land rights act, where the miner is under obligation to provide a high standard of information and go into specific details of the site proposal and environmental impact. In addition, the proponents are tied to the statement, as if they do not accord with it the mining title may be cancelled. Those sorts of provisions do not exist in this bill. They exist if you are taking out a mining tenement to fossick for gold or whatnot; they do not exist in the case of a national radioactive waste dump.

I would like to make a few brief comments about compliance with a declaration of Indigenous rights before I put a question to the minister. As is evident, none of the provisions of the 2010 bill for the Aboriginal land rights act accord with a declaration of Indigenous rights adopted by the Australian government, particularly articles 10, 29 and 32. Article 10 states that:

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 29 states that:

States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

Article 32 states that:

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

My contention is that the legislation that is before us this afternoon runs directly counter to those articles, those obligations to which Australia is a signatory. I am proud that we are a signatory, but in this instance we are trying to impose a facility on a community where free, prior and informed consent was not sought and was not granted, and that is why this has turned into such a fierce campaign.

As evidenced by the Muckaty nomination by the Aboriginal people, they are being forcibly removed from the nominated site without their prior informed consent and there have been no effective mechanisms for just and fair redress due to the exclusion of judicial and merits reviews. The Commonwealth has used inducements of cash—not very much but inducements nonetheless—for essential services to undermine the freedom of decisions by Aboriginal people. Minister, my question to you is whether any advice was sought by any office of the Commonwealth, particularly the minister's, as to whether this proposal violated those articles of the Declaration on the Rights of Indigenous Peoples that I have just read into the record.