Court Report Day 2 – Further attack on the conduct of the NLC
by Padraic Gibson
The second day of the Federal Court trial was taken up by continued opening submissions from Ron Merkel QC, acting for Traditional Owners challenging the nomination of Muckaty for a nuclear waste dump.
Apart from technical legal arguments, Mr Merkel focussed almost entirely on examining the conduct of Northern Land Council (NLC) Principal Legal Officer Ron Levy, who he describes as the “guiding hand” of the nomination.
Mr Merkel painted a picture of a man committed to pushing through the dump at all costs: “We infer that Ron Levy had a plan and set about to get it done.”
Among the more serious allegations were that Mr Levy rebuffed suggestions by the Commonwealth that further consultations with Traditional Owners about the terms negotiated for the Deed of Agreement would be needed to satisfy the requirements of the Aboriginal Land Rights Act NT (ALRA).
Mr Merkel cited email correspondence where Mr Levy says further consultations would be “fraught with political risk” because they would give opportunity for “dissidents” within the Muckaty group to cause “mayhem.”
For the “two most important” consultation meetings about the nomination, where Traditional Owners supposedly gave their consent, Merkel says there are apparently “no recorded minutes”.
Under ALRA, for a nomination to progress, the full council of the NLC, comprised of delegates from across the top half of the NT, needs to be satisfied that there is consent from Traditional Owners whose land will be affected. There was such a resolution passed through the Council, but according to Mr Merkel, “the explanation provided to Full Council” about the nature of the agreement, “was so woefully deficient that it doesn’t meet any standards of bona fides… and moves into maladministration”.
In an ironic twist, Mr Levy is alleged to have cited the high costs of consultation in remote areas to justify the standard provided by the NLC in this case. Mr Merkel pointed out that such costs pale in significance to the enormous cost currently being borne by the NLC and Commonwealth Government defending the nomination in court.
More detail also emerged through the proceedings about the nature of the agreement between the NLC and the Commonwealth. What is clear is that much of the compensation was going to take the form of what many in Australia consider essential services, such as road maintenance. Thirty scholarships were also going to be provided through the Commonwealth Department of Education.
In comments to the media, 20 year old Muckaty Traditional Owner Kylie Sambo expressed her anger at the government’s refusal to provide proper education opportunities for Aboriginal youth in her region, unless they accept a nuclear waste dump. Even the High School in the urban centre of Tennant Creek where many owners of Muckaty live, currently does not offer a Year 12 graduation certificate that would allow entry to University.
Banter between Mr Merkel and Justice North provided an important insight into the difference between law and justice. Justice North made it clear that his final decision could not in any way be based on the morality of putting a nuclear waste dump at Muckaty; “I’m not sitting here looking at the moral arguments, if I was I would have an easy answer”.
While Traditional Owners are very confident in their case, the message from the 300 strong rally in Tennant Creek on May 25 was clear on this point too, with a lead chant of the day demonstrating the determination of the community to continue their fight for justice: “if they’re going to build it – we’re going to block it”.