By Padraic Gibson
Dr Donoghue continued submissions for the Commonwealth for most of the morning session. He restated an argument that both the Northern Land Council and Commonwealth have used in the lead up to this trial during Directions Hearings; that the Commonwealth Radioactive Waste Management Act (2005) had been clearly designed to shut down legal avenues for Aboriginal people wanting challenge the nomination of their land for a waste “facility”.
Dr Donoghue explained that the Commonwealth had been attempting to establish a remote “facility” since the 1980s in numerous locations. But consistent opposition, including successful litigation, had prevented them from doing so. With this in mind, the Howard Government went out of it’s way to ensure Traditional Aboriginal Owners were explicitly stripped of their rights in the 2005 Act.
Dr Donoghue cited a number of legal avenues explicitly closed to anyone wanting to challenge a national radioactive waste dump, including the exclusion of procedural fairness and a clause allowing nominations on Aboriginal land to remain valid even if a Land Council had not complied with obligations under the Aboriginal Land Rights Act (NT) 1976.
If this argument is accepted by the court, the nomination of Muckaty as a nuclear waste dump will stand even if the Traditional Owners are found never to have consented to the nomination. Or, as Dr Donoghue put it, “the fact of consent being validly given is not legally relevant”.
This line of argument, not to mention the Radioactive Waste Management Act itself, demonstrates the extreme contempt in which the Commonwealth holds the rights of Aboriginal people.
Another attack on Land Rights contained in the Act also became clear in the course of the Commonwealth submissions. So far, arguments in court have focussed on whether the NLC followed proper process in nominating the particular site now earmarked for the waste dump. The quality of consultations with other Traditional Owners, said to hold responsibility for land on Muckaty that is required for transport of the radioactive materials, has also been discussed. But Dr Donoghue made it clear that if the nomination of the waste dump site is allowed to stand, Aboriginal owners of adjacent lands would lose any rights to stop developments on their land needed to facilitate the dump. The Act gives power to the Commonwealth to simply compulsorily acquire any further land that they need to allow the dump to operate.
Unfortunately, I was unable to be in court for the full submissions from the NLC which began in earnest after lunch. My understanding is that they put forward detailed legal analysis to try and demonstrate how actions of the NLC through the nomination process were all in accordance with the Land Rights Act. They also argue a similar line to the Commonwealth however, that under the draconian radioactive waste management law, the nomination should stand regardless. Significantly, the NLC also argued that the Land Rights Act does not create a “fiduciary duty” to Aboriginal people whose land they manage, and they can not be held to that standard.
NLC barrister Mr Glacken at one point said it was “scandalous” that Mr Merkel QC had raised the allegations of serious misconduct against NLC Principal Lawyer Ron Levy, citing his long career working for Aboriginal people. There is no doubt they are extremely serious allegations, the truth or otherwise of which will be explored in detail in the coming week when the Aboriginal owners of Muckaty finally get to tell their stories about the nomination process and their connections to the land.
But regardless of this, three scandals are undeniable. Firstly the Commonwealth held impoverished Aboriginal communities to ransom, withholding funding for essential services unless they accepted a nuclear waste dump. Secondly, as Dr Donoghue made clear yesterday, they did so using legislation which strips Aboriginal people of their actual rights to land. And thirdly, a major Aboriginal Land Council has, from the outset of this case, been hiding behind an argument which says a nuclear waste dump should proceed at Muckaty even if it is found that Traditional Owners do not consent. This is a sad indication of the extent to which Land Rights in Australia were seriously pushed back under the Howard Government.