By Padraic Gibson- June 2, 2014
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.