Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Hansard source

I thought my colleague the member for Tangney might have taken a bit more time since this topic is of such great interest to him and he is a person who has some expertise. The Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006 is extremely important for all of us to contemplate, for a whole range of reasons, not the least of which is the impact that it will have on the rights and interests of Aboriginal people who are traditional owners of land in the Northern Territory.

On Monday of this week, I was privileged to be at Gan Gan, a small community in the north-east of Arnhem Land. At Gan Gan there was a ceremony which had lasted some four or five days. It was attended by around 800 people, Aboriginal Territorians from as far south as Ngukurr and Numbulwar and from Galiwinku and the coastal communities to the north of Gan Gan as well as the other communities of north-east Arnhem Land, including Yirrkala. These ceremonies are very important indeed. This particular set of ceremonies is important because they are about the transmission of knowledge, the passing on of sacred knowledge to do with the land and Aboriginal people’s responsibilities to it. This was the passing on of the knowledge of an old, very distinguished man in a wheelchair, Gawarrin Gumana.

This is important in order to put the discussion that we have been having this morning and will continue to have later into some sort of context, a different context to the one which is being embarked upon by the government but one which underlines the very importance of appreciating, understanding and coming to terms with Aboriginal traditional law. It underlines the importance of understanding the obligations that Aboriginal people have under that law—in this case, in the Northern Territory—and what those obligations mean in relation to the land that they are the custodians of and for which they have responsibility, for which they hold the stories and the ceremony. That is the sort of knowledge which was passed on earlier this week in the ceremonies by Gawarrin Gumana to people who are to follow him.

Another ceremony took place on Monday which again emphasised the nature of relationships, the nature and importance of land and what has happened to this place in terms of land. At this ceremony a memorial was unveiled to commemorate a massacre that took place at the waterhole at Gan Gan in 1911. This massacre does not feature in Keith Windschuttle’s story of Australia. Indeed, it does not feature in many written authorities on the story of Australia. An expedition led by non-Aboriginal people came to this place. We do not know exactly for what purpose, but we suspect it was to look for a geologist who had gone missing while exploring for minerals in north-east Arnhem Land. The supposition was that he had been killed by Aboriginal people in north-east Arnhem Land. So this was a reprisal and it saw the massacre of a large number of people at Gan Gan. The result was that six people were killed. Their names are identified on the plaque because of the genealogies that exist—people know who the people were. There were survivors. One of them dived into the billabong and was able to retell the story to the following generations. That person was able to tell the people who followed him the story about the land and, in this case, about the Manatja clan. They had responsibilities for land in that country, but they have become all but extinct as a result of this massacre.

The reason this is important is that it provides some insight into the way in which Indigenous Australians—in this case those living in the Northern Territory—see their responsibility towards one another and as part of a community. They have obligations to the country which they have custodianship of and which they do not want to leave. This was picked up in the considerations of Justice Woodward, who was commissioned by the Whitlam government to look at land rights in the Northern Territory. He looked at all of the issues around the question of land rights and land tenure. He came to understand the importance of the relationships between the people, between the people and the land and between the people and all the things on the land—whether they were trees, rocks, birds, crocodiles or whatever. The relationship that exists between people and land was understood. It is in the stories; it is in the ceremony. It demonstrates very clearly people’s title to the country.

So it was no surprise that Justice Woodward said that land title should be given to Indigenous Australians, in this case in the Northern Territory, and that it should be inalienable, freehold title—a communal title which could not be easily taken away. If the Commonwealth were to acquire compulsorily any of the land after this new form of Aboriginal title were introduced, it should only take place with the consent of the regional land council or by the authority of a special proclamation tabled in the parliament and subject to disallowance by the regional land councils. That is not exactly reflected in the land rights act, but what we are seeing today is a none too subtle attempt by this government to undermine the very principles of the land rights act and the things that are seen as so important by the Gawarrin Gumana and other people of north-east Arnhem Land as well as by people living elsewhere in the Northern Territory. What is important to them is their relationship to country, their responsibilities to country, their ability to speak for country and their knowledge of country. But, as I said, we are now seeing a none too subtle attempt by the government to undermine those relationships.

We know that the land rights bill subsequently passed by the Fraser government was a very enlightened piece of legislation. It placed great responsibility upon land councils as representatives of the traditional owners in how they deal with land or with any proposals to develop land. We know that in terms of country, the land councils have a set of specific requirements on consultations with traditional owners and any developments of their land. The land councils must consult with traditional owners; they must have regard to the interests of traditional owners; they must not take action without the consent of traditional owners; they must ensure that traditional owners understand any proposal; they must ensure that affected Aboriginal communities have expressed their views; and they must comply with the decision-making processes of the traditional owners. It is a very strong obligation upon the land councils.

This obligation was in part reflected in amendments to previous legislation. In dealing with the potential for Aboriginal land to be used as a waste site, obligations exist under the land rights act for parties to consult with traditional owners and to act on the basis of informed consent in any decision making that takes place. Nominations, including provisions on the process of nomination by a land council, must demonstrate evidence of consultation with traditional owners, that traditional owners understand the nomination, that they have consented as a group, that any community or group that may be affected has been consulted and that it has had adequate opportunity to express its views.

I would say, and I think most people would say, that is a fair representation of the obligations that land councils have to represent properly the views of traditional owners and to reinforce those relationships that were being expressed in the form of a ceremony at GanGan earlier in the week. Now we know that the legislation we are discussing this morning would relegate these protections to mere guidelines, because item 4 of this legislation would make them unnecessary.

The Bills Digest is very instructive. It goes through the items seriatim and states:

Item 3 inserts proposed sub-section 2A which negates the legal significance of Section 3B by stipulating that failure to comply with these rules—

that is, the ones I have just referred to—

has no legal effect—i.e. a nomination will still be valid.

We know that the impact of this amendment would effectively be to render the requirements in the original piece of legislation non-binding recommendations whose breach would have no legal effect. The concluding comments of the Bills Digest quote the second reading speech of the Minister for Education, Science and Training, in which she said:

I can assure the House that, should a nomination be made, I will only accept it if satisfied that these criteria have been met.

The Bills Digest says:

... [i.e. the criteria governing consultations and information that must be provided to and about traditional owners before a nomination is made].

This legislation provides unambiguously, as we are informed, that there is no binding legal need to ensure the criteria have been met. So it is a con. It is a very sneaky way of undermining the very foundations of the Aboriginal Land Rights (Northern Territory) Act, because what is also anticipated in this legislation is that the Commonwealth will have ownership of the land. It will not be leased to them but, somehow or other, they will get access to that country either by compulsory acquisition or by some agreement. We now know, because there is no binding effect on the need for consultation, that the land councils will not be required to do the consultation which they would normally do. If they do not, and they nominate land or provide some agreement to the Commonwealth about a piece of land, because any procedural rights that might otherwise have existed have been removed by this piece of legislation and because the decisions will not be appealable a deal could be done whereby the Commonwealth could take a parcel of land, like the land that Gawarrin Gumana was passing on ceremony for, and almost by fiat determine that it would be a site for a nuclear waste facility, knowing that there would be no legal challenge against it. They could say that they were going to take the land, remove the inaliable freehold title, make it a Commonwealth title for the purposes of this facility and, at the end of 200 or 300 years, have no obligation to hand it back.

I do not believe that anyone has been fooled by the intent of this legislation and the amendments before us today. They are a con. They are a very cynical attempt to undermine the rights that Aboriginal people currently have to due process in consideration of developments on their country. This bill finishes off the job that was started with the Commonwealth Radioactive Waste Management Amendment Act 2005. As we know, it had already blocked some avenues of legal challenge to site selection by giving the minister absolute discretion to choose any site—removing any entitlement to procedural fairness, removing the need to comply with procedure, preventing the application of the Administrative Decisions (Judicial Review) Act 1977 and, in relation to the site’s nomination, giving to the minister absolute discretion to approve a nomination. This bill further prevents the application of the AD(JR) Act, it removes any entitlement to procedural fairness and it removes the need to comply with the procedures previously set down.

We know that, despite this, Aboriginal people certainly expect their views to be properly heard and understood. We know that the Central Land Council have undertaken their obligations seriously. They know that their obligations for consultation under sections 23 and 77A of the Aboriginal Land Rights (Northern Territory) Act and sections 203BC and 251B of the Native Title Act require them to undertake certain procedures, which we now know will not be necessary down the track if someone chooses not to follow them in relation to a site proposal. But they have followed them. They have had a large number of meetings with traditional owners of the two sites in Central Australia that have been earmarked, Hart’s Range and Mount Everard. Between 16 August 2005 and 9 November 2006 they have had 13 meetings, 11 of them with traditional owners of the proposed sites. There has been appropriate consultation. These meetings have facilitated representations by ANSTO and DEST officials and exhibited test maps and schematic posters. DEST officials were invited to further discuss the issues and update TOs. The meetings have explained the legislative processes and the proposed laws, provided information in translated audio and video format as well as in newsletters, complied with traditional decision-making processes and spoken up for the interests of TOs at their request.

And what is the government’s record? As with the 2005 amendment bill, the government simply introduced this amendment bill in this House, with no warning, a month ago, without so much as a by-your-leave or an attempt to discuss it with the people who it will affect. And, as we know, of the 13 meetings organised by the Central Land Council, only one was attended by DEST and ANSTO officials. DEST was invited to attend a meeting on 7 November at Alice Springs and another on 9 November at Mulga Bore, to the north of Alice Springs, and chose not to attend.

This is a very serious piece of legislation. As I have said, I think it is a very cynical attempt to undermine the rights of traditional owners in the Northern Territory and to continue the process of imposing upon the people of the Northern Territory, Indigenous and non-Indigenous, a nuclear waste facility that may, at some time in the future, house the waste of 25 nuclear plants—because that is what the government will have the power to do.

This is a shameful piece of legislation which should be rejected, and I urge members to support the amendments moved by the member for Jagajaga. (Time expired)

See this speech in context