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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.