Federal Court goes to Muckaty

June 13, 2014
Warlmanpa elder Bunny Nabarula gives evidence to the Federal Court at Muckaty on June 9.

Seven years after Muckaty Station was nominated as a radioactive waste dump site, a Federal Court challenge has begun in Tennant Creek, 500 kilometres north of Alice Springs and 120 kilometres south of the proposed dump site.

In 2007, the Northern Land Council (NLC) nominated Muckaty to the Commonwealth. The Federal Court challenge is based on the argument that the traditional owners were not properly consulted and they did not give consent.

The case began in Melbourne on June 2. Ron Merkel QC, appearing for traditional owners opposed to the waste dump, said the NLC's nomination was a breach of the rights of traditional owners under the Aboriginal Land Rights Act NT (ALRA).

He said the federal government could not be considered an “innocent third party” in this breach of rights, given its close collaboration with the NLC through the nomination process.

Under ALRA, for a nomination to progress, the full council of the NLC needs to be satisfied that there is consent from traditional owners whose land will be affected. Such a resolution did pass council, but Merkel told the court: “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.”

Merkel cited email correspondence in which the NLC's legal officer, Ron Levy, said further consultations would have been “fraught with political risk” because they would give opportunity for “dissidents” within the Muckaty group to cause “mayhem”.

The Commonwealth Radioactive Waste Management Act (2005) was clearly designed to shut down legal avenues for Aboriginal people wanting to challenge the nomination of their land for a waste dump. The John Howard government went out of its way to ensure Aboriginal traditional owners were explicitly stripped of their rights in the 2005 act.

The land council produced two anthropological reports for the waste dump commission in 2006. The first report was 50 pages and the second was 20. The emphasis in the original report on shared responsibility for sites across Muckaty by all clan groups was absent in the second report. 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”.

The week of court proceedings in Melbourne focused on technical and anthropological evidence. However, the court has agreed to sit for two weeks in Tennant Creek to provide an opportunity for Justice Anthony North to see and experience the country being talked about and hear evidence from traditional owners. Questioning has focussed on the nomination process and their connections to the land.

The court was taken to the proposed dump site on June 9. Senior Warlmanpa man Dick Foster, one of the applicants challenging the waste dump, explained the dreaming stories that are significant to the nominated site and how these impact on the rights and responsibilities of different clan groups.

Bunny Nabarula, an 84-year-old Warlmanpa elder who has been a leading spokesperson in the campaign against the dump for seven years, also gave evidence on site. Nabarula alleged that the NLC have strongly supported the small family group who nominated the dump, while trying to exclude those opposed to the waste dump from access to some consultation meetings.

Nabarula argued that her clan, the Milwayi, have primary responsibility for the nominated site, but also that numerous clans have overlapping dreamings and responsibilities in the area, meaning that they would all need to be involved in major decisions such as the introduction of a nuclear waste dump.

Court proceedings will continue in Darwin.

If the government’s argument is accepted by the Court, the nomination of Muckaty as a nuclear waste dump will stand even if the traditional owners are found to have never consented to the nomination.

It may be months before a decision is made on this case. 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.”

There will be a national day of action to keep Muckaty nuclear-free held on June 20. For more information visit Beyond Nuclear Inititative.

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