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Muckaty Court report Day 3- June 4

Court Report Day 3 – when is a dump not a dump?

By Padraic Gibson

The morning opened with further introduction to the anthropological evidence available for the case from Ron Merkel QC and then David Yarrow, another barrister acting for Muckaty Traditional Owners challenging the nomination of the Muckaty site for a national radioactive waste dump.

Mr Merkel handed up to the court two anthropologist reports completed by the NLC specifically for the waste dump nomination in 2006. Mr Merkel argued there were differences between the first report, prepared exclusively by the NLC anthropologists, and the second, which had been both “heavily edited” and “rewritten” by NLC principal lawyer Ron Levy, despite his signature being absent.

The first report was 50 pages and the second was 20, Mr Merkel said. It was the second report that was eventually given to the Minister, to substantiate the NLC’s contention that exclusive traditional ownership of the nominated waste dump site is held by the narrow “Lauder branch of the Ngapa clan”.

Mr Yarrow focussed his submissions on explaining the difference between the NLC report relied upon for the nomination and the anthropology that had informed the original land grant of Muckaty to Traditional Owners by Justice Gray, under the Aboriginal Lands Rights Act NT in 1993. He reiterated the case that there is no evidence whatsoever in the original report that would justify the “Lauder branch” had exclusive claim to this site. Indeed, Mr Yarrow pointed to some evidence in the report that said another clan group, the Yapa Yapa, have primary responsibility for the site.

More significant than an argument about who has primary responsibility however, is the emphasis in the original report on shared responsibility for sites across Muckaty by all clan groups. Mr Yarrow argued that this fundamental principle that underpins the land grant had been abandoned by the NLC in their nomination of the site on Muckaty.

The Commonwealth barrister Dr Donohue begun his submissions just before lunch, fiercely defending the NLC’s process in making the nomination.

Despite the focus of the legal proceedings on the alleged misconduct of the NLC, from the perspective of the campaign against the Muckaty dump, the Commonwealth submissions provided an important reminder that the central problem here is the discriminatory actions of the government in targeting impoverished Aboriginal communities for some of Australia’s most toxic industrial waste.

The genesis of the Muckaty dump nomination is the Commonwealth push to establish a waste dump on Aboriginal land. The court heard evidence of Commonwealth representatives starting to attend full council meetings of the Northern Land Council in late 2005, to pitch the idea of a dump to Aboriginal land owners.

Both the Commonwealth presentations to the NLC full council in 2005 and the Commonwealth barristers presentations to the court yesterday were fiercely ideological around the question of nuclear waste – arguing that the dump would perfectly safe.

Maintaining this position requires severely playing down the presence of reprocessed spent nuclear fuel rods at the waste dump. The government produced video shown to the NLC in 2005, and yesterday in court for example, contained no information about the spent nuclear fuel and the dangerous properties, including the length of time it is required to be isolated from people and the environment.

Dr Donohue’s presentation about the waste dump to the court opened with a lengthy explanation about the “exceptionally low-level” waste such as hospital gloves and x-ray equipment planned for Muckaty, with plenty of discussion about the lack of risk presented by this, before moving to a cursory discussion of the spent fuel. From my discussions with Traditional Owners at Muckaty I know that similar tactics were used by the Commonwealth in consultation meetings, creating an early impression that it was “just hospital stuff” planned for Muckaty.

As Traditional Owners have consistently pointed out – if this stuff is so safe, why do you want to put it so far away from the cities?

The second ideological argument put strongly by the Commonwealth, both in their submissions to court and in their presentations to Traditional Owners during consultations, is that the waste dump is needed to allow for the continued operation of nuclear medicine in Australia. This argument has been comprehensively rebuffed by health professionals, such as Dr Michael Fonda from the Public Health Association, who has highlighted the cruelty of making Traditional Owners, who live in communities that suffer from developing world health conditions, feel guilty that somehow their opposition to a waste dump would be an impediment to others receiving health care.

See for example the short video: Nuclear Furphies and Political Follies.

Dr Donohue even argued that the term “waste dump” was incorrect, because intermediate-level waste would be held in an above ground storage shed and the contract with the NLC is “only” to keep them there for 200 years. No mention was made about provisions in the 2005 Radioactive Waste Management Act which stipulate that the Commonwealth will not hand back any land that had been contaminated. This also ignores the fact that the “low level” waste is set be buried, with no intention of recovery.

The nature of the waste dump then, is shaping up to be a central issue in the case. In defending the NLC’s consultation process for example, the Commonwealth cited minutes from meetings of Muckaty Traditional Owners where lawyer Ron Levy has said that the role of the NLC was “just to explain” the proposal, but it was up to the TOs themselves to decide. For the purposes of establishing wether there was informed consent however, the way the waste dump was characterised to Traditional Owners will be crucial.

The Commonwealth closed the day with a fierce defence of the NLC’s consultation process, and particularly the actions of lawyer Ron Levy.

Lists of attendees at early meetings were tabled to argue the case that consultation had taken place widely and that senior members of all clans had agreed that the narrow Lauder family group had sole ownership rights over the nominated site.

However, some contradictions in this evidence are already apparent. For example, senior clan leaders were quoted as saying that dreamings belonging to clan groups other than the Lauder’s “passed through” the nominated site. Records of meetings relied upon to establish consent were apparently never taken.

In my discussions with Muckaty Traditional owners over the last seven years, key witnesses relied upon by the Commonwealth have strongly rejected the assertion that they ever consented to the waste dump, or ever said the decision should rest with the narrow family group in question. Next week they will have a chance to be heard directly, as the court relocates to the Northern Territory for hearings both at Muckaty itself and in Tennant Creek.

Muckaty Court Report Day 2 – June 3

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”.

Muckaty court report No. 2- June 2

Report from Federal Court trial examining the nomination of Muckaty for a national nuclear waste dump.
Day one – Explosive revelations about NLC misconduct
By Padraic Gibson- June 2, 2014
Monday June 2 was the first day of the Federal Court trial examining the nomination of Aboriginal Land at Muckaty for a nuclear waste dump. The day was taken up entirely by the opening submissions of Ron Merkel QC, appearing for Traditional Owners opposed to the waste dump. If proven, the revelations contained in these submissions are an explosive indictment on the actions of the Northern Land Council, particularly their non-Indigenous Principal Legal Officer Ron Levy, who Merkel QC says was the “guiding hand” in the nomination from it’s inception. Merkel says that the behaviour of the NLC in making the nomination was such an egregious breach of the rights guaranteed to Traditional Owners under the Aboriginal Land Rights Act NT that it should be struck out.Mr Merkel also stressed that the Commonwealth Government could not be considered an “innocent third party” in this breach of the rights of Muckaty Traditional Owners, given their close collaboration with Mr Levy through the nomination process.The Muckaty Land Trust was handed back to Warlmanpa people in 1993 by Justice Gray, under the Aboriginal Land Rights (Northern Territory) Act 1976, following many years of struggle and a lengthy determination.

Central to the anthropology that informed the hand back was a rejection of an “estate” approach to traditional ownership, which would prescribe specific areas of land to small family groups, in favour of one which emphasises collective forms of decision making amongst all groups of Muckaty , due to the overlapping dreamings and responsibilities of the clan groups on desert country.

In contrast to this, the nomination of a discrete site on the Land Trust for this waste dump was made by one small family group, “the Lauder branch of the Ngapa clan”, just one branch of one clan amongst the seven clan groups that were recognised by Justice Gray as forming the Land Trust.

Significantly, Ms A. Lauder, the key proponent from the Lauder branch, was delegate for the Muckaty region on the NLC Full Council and her husband sat on the NLC Executive 2006, when the Commonwealth Government were making overtures to the NLC about the benefits of a waste dump.

When other Muckaty Traditional Owners became aware of the nature of this potential nomination in 2006, they rejected the narrow approach to traditional ownership, demanding the NLC convene broader cross-clan decision making meetings. These meetings never occurred.

In perhaps the most damning piece of evidence presented yesterday, Mr Merkel argued that NLC lawyer Mr Levy, strongly committed to the waste dump, had heavily edited, to the point of “becoming the author” of the anthropology report relied upon for the nomination. This despite the report being signed by the NLCs “in house” anthropologists.

Mr Merkel argued that Mr Levy’s report was such a massive departure from the anthropology that formed the basis of the Muckaty land grant that it effectively robbed Warlmanpa people of their ownership rights and should invalidate the nomination.

Mr Merkel’s second line of attack was on the deed signed by the Commonwealth and the Northern Land Council that constitutes the nomination of Muckaty and outlines the terms of the compensation that will provided by the Commonwealth.

Again, Mr Merkel argued that the terms of this deed are such an egregious breach of the rights of Traditional Owners, that it should be struck out as invalid.

Rather than clearly outlining the rights of Traditional Owners to direct payment for nomination of Muckaty, the deed only mandates payment to a “charitable trust” to be set up at some time in the future, on terms yet to be determined.

Merkel said, “not one Aboriginal person on Muckaty station has any right whatsoever to one cent under this deed”. He said it could at best only be considered an “agreement to agree” that had no legal standing.

The only obligation on the charitable trust to actually deliver benefits Traditional Owners comes in the form of vague statements about spending needing to improve the welfare of Aboriginal people. Mr Merkel used a hypothetical example of funds potentially being distributed to a Christian mission on Muckaty to highlight this point.

Again, the actions of Ron Levy, which Mr Merkel characterised as “paternalistic”, came under strident criticism.

Mr Levy is alleged to have not ever presented to terms of the deed to the Traditional Owners of Muckaty, or the broader Northern Land Council. Correspondence from Mr Levy to the Commonwealth Government was quoted to demonstrate Mr Levy’s view that such consultations were not necessary.

Mr Merkel said there is a “complete disconnect between what this deed does and what ALRA permits the NLC to do… (the deed) gives up all the rights of traditional owners in favour of the establishment of this trust… this is perhaps the clearest example of breach of fiduciary duty that one could find”.

In just one example of the paternalism embodied in the deed, it provides for provision of educational scholarships out of Commonwealth funds. But it does not stipulate who will actually receive these scholarships, and discretion is reserved by the NLC and Commonwealth.

The Commonwealth however, obtain clear rights under the Deed. They can terminate the project at any time, giving them the right to withhold money that had not been distributed.

The case continues today. Mr Merkel QC is expected to continue the opening submissions throughout the morning, followed by David Yarrow QC, also appearing for the Applicants. Mr Yarrow will present detailed evidence on the anthropology in question.