Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

As earlier speakers made clear, Labor is opposing the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006. The bill seeks to make land nominations for a Commonwealth radioactive waste facility non-reviewable under the Administrative Decisions (Judicial Review) Act 1977. It also seeks to ensure that noncompliance with the site nomination rules in the 2005 act will not affect the validity of the minister’s approval of a nomination. The bill will remove any entitlement to procedural fairness regarding site nominations. It also makes amendments to the Commonwealth Radioactive Waste Management Act 2005 concerning the return of Aboriginal land used for a waste management facility. And it provides an indemnity to traditional owners against any damages which may arise out of the use of land for a facility.

In removing the mechanisms for appeal and transparency over site nominations and weakening the requirements for consultation, the government has run roughshod over affected Indigenous communities, and that is why I join this debate. The legislation is a major attack on the rights of Aboriginal traditional owners and an abuse of the power of the Howard government. Labor recognises the need for the establishment of a domestic radioactive waste facility. It has been known of course for the last 10 years that the government has been seeking to establish a facility; it is now having to rush that project because of the scheduled repatriation of Australian radioactive waste in 2011. What we are dealing with here is the removal of any potential obstacle as the government rushes to meet the deadline. The obstacle being removed is the right of Aboriginal traditional owners to have a say over what happens on their land. As has been usual throughout our history, the rights of Aboriginal people will be overridden.

The intent of the government’s 2005 legislation was to put beyond doubt its capacity to pursue activities concerning the siting, construction and operation of a waste facility in the Northern Territory. Labor opposed that legislation because it undermined the rights of Indigenous people in the Northern Territory and Territorians more generally, it broke a coalition election promise, it overrode a number of federal legal protections and it was implemented without hearing the concerns of Territorians.

The legislation explicitly removed the right to procedural fairness regarding the selection of a site for the facility. The 2005 related amendment excluded application of the Administrative Decisions (Judicial Review) Act 1977 to ministerial decisions on a facility site. The CLP member for Solomon moved amendments to last year’s legislation to allow for the nomination by the Northern Territory Chief Minister or a land council of land to be assessed for a site. Those amendments set down statutory rules that would have to be followed by land councils in the nomination process. These included demonstrated evidence that traditional owners had been consulted, had understood the nomination and had consented as a group. They also required that any affected, adjacent community or group be consulted and given the opportunity to express their view.

The legislation before us today downgrades those statutory rules to the status of guidelines. The bill therefore seeks to remove the requirement for consultation with and informed consent of traditional owners. It removes the right of adjacent communities to even be consulted and removes recourse to judicial review and procedural fairness.

With this bill the government is reneging on the commitment to consultation, consent and process which it made by accepting one of its own backbenchers’ amendments last year. Where Aboriginal owners and communities currently have a statutory right to proper process, they are now seeing that replaced with an unenforceable undertaking by the current Minister for Education, Science and Training, who in her second reading speech said:

Current provisions of the act set down a number of criteria that should be met if a land council decides to make a nomination. Importantly, these criteria include that the owners of the land in question have understood the proposal and have consented to the nomination, and that other Aboriginal communities with an interest in the land have also been consulted.

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

That assurance is a pretty flimsy replacement for a set of legal rights. You have to be cynical about the value of a promise to uphold proper process made by a minister as she legislates to remove the right to such a process.

The establishment of a radioactive waste dump on Aboriginal land will have a major impact on the affected landowners. It could mean traditional owners losing access to their land for anything up to 300 years and it could have ramifications in regard to environmental health for nearby communities. That is not to say that all Aboriginal people are necessarily opposed to the establishment of a facility on their land. That is a decision for them to be informed about and to make after proper consultation. But how the traditional owners use their land is very much a decision for them and their communities. In doing so they should have the right to a transparent process, legal protections and procedural fairness.

Given the extremely long-term nature of a waste disposal facility, and its potential health and environmental impacts, it stands to reason that community consultation, consent and process are of the utmost importance. In the report of the Senate inquiry into these measures, government senators concluded that the overriding concern was the establishment of a facility and that ‘questions of due process and appeal rights are minor and subsidiary’. How dismissive and insulting! This is not a position which I think reflects well on those senators. I think many people would question whether those senators would have come to the same conclusion if it were their property rights and their entitlement to due process which were at stake. And I think many people would question why the government’s decade-long failure to establish a facility means that Aboriginal people’s property rights should now be diminished. Again, it is Aboriginal people whose rights are going to be overridden in order to facilitate government policy.

This legislation is being debated in the context of the changes to the Aboriginal land rights regime that were passed in the Senate in August. Those changes were the most radical redefinition of that framework since its enactment three decades ago. The government pursed its agenda without paying the basic respect of consulting with or gaining the consent of Aboriginal traditional owners. As such they trashed the long-established bipartisan commitment to the land rights regime—one of the most important and significant acts of reconciliation in Australian history.

The government is now seeking to coerce Aboriginal communities to sign up to 99-year leases on their land in exchange for basic services such as education. This is a calculated undermining of basic citizenship rights of Aboriginal people. The restoration of land to its traditional Indigenous owners was a vital step in reconciliation between black and white Australia. The government’s undermining of Indigenous rights over Aboriginal land—either through imposing changes to the land rights act or through the bill before us today—reflect a return to an approach that views Aboriginal people’s rights as some sort of gift of the government, to be removed at the government’s pleasure.

The siting of a radioactive waste facility on Aboriginal land is a decision of huge and long-term significance. To remove the legal rights that Aboriginal people have in that process is to do them a terrible wrong. It further entrenches the despair of so many Aboriginal people at their treatment and the continued lack of respect shown to them. It sends a clear message that the Howard government believes that Aboriginal rights are expendable and Aboriginal views can be ignored. It is not a message this Senate ought to endorse. It is not a message that this parliament ought to send to Indigenous people. I urge the Senate to reject the bill.