Labor's Nuclear-Powered Steamroller

It seems federal Labor is still playing a toxic game of pass-the-parcel with nuclear waste. On Monday, the Senate inquiry into the National Radioactive Waste Management Bill 2010 held its final hearing in Darwin. The inquiry has been underway since September and is expected to deliver its recommendations by the end of the month. Those recommendations are not expected to favour the proposed dump site at Muckaty Station near Tennant Creek. But the Bill may be passed anyway, which would turn the site selection into a magically done deal.

Outside the meeting at Darwin’s Parliament House, protesters gathered — a convoy of traditional owners from Muckaty, people from the Ngapa, Milwayi and Yapa Yapa groups opposed to the waste dump. The protest was a continuation of actions in Tennant Creek on 3 April which saw over 200 people gather to voice their concerns — certainly the largest protest ever held in the small outback town.

Many people with a stake in the Muckaty Land Trust are very unhappy about the proposed dump, yet an agreement was signed by the Northern Land Council (NLC) on their behalf. In its submission to the inquiry the NLC wrote, "The NLC’s comprehensive consultations during 2006 and 2007 established that there is substantial support for the waste facility from neighbouring Aboriginal groups on Muckaty Station, with only a few individuals in other groups expressing concerns … In these circumstances it is not appropriate that there be retrospective legislation to expand the grounds whereby the NLC’s 2007 nomination may be challenged."

Clearly the NLC is underestimating opposition to the dump when it describes that opposition as the feelings of just "a few individuals". In fact, there are no fewer than five groups with a direct stake in the Muckaty area. In 2008, 28 traditional owners with a stake in the Muckaty Land Trust wrote to current federal Resources Minister Martin Ferguson to voice their opposition. In 2010 there were 50 such submissions.

Greens Senator Scott Ludlam told the ABC: "It’s very clear from the evidence that we’ve been taking now for a number of years that the process has broken down very seriously."

It is certainly obvious that something has gone terribly wrong with the consultation process and, on closer examination, that something appears to be some sleight-of-hand by the Commonwealth Government.

One of the Bill’s biggest problems is that it would establish a dump site nomination process that required the consent of the site’s traditional owners — but at the same time it assumes that their consent has already been given. That assumption comes courtesy of the existing contract between the NLC, the Muckaty Land Trust and the Commonwealth Government, which was signed in 2007 and which Martin Ferguson has said he will uphold. But that agreement was made with a laughably poor consultation process under the existing Act: the Commonwealth Radioactive Waste Management Act of 2005–06.

Speaking about that Act before the last federal election, the then shadow minister for the environment Peter Garrett said, "this has been a sorry and a sordid business driven by a licensing imperative for nuclear processes that no one has consented to. This [Howard] government continues to make a mockery of the principle of informed consent, of community participation and of respect for the wishes and interests of Aboriginal people in this country."

The ALP made an election promise to repeal the Radioactive Waste Management Act. The Labor frontbencher responsible for making that promise was Senator Kim Carr, then shadow minister for Territories, who, when Muckaty was selected back in September 2007, said, "today’s announcement is yet the next chapter in the decade-long saga of lies and mismanagement that has become Howard’s waste dump."

If federal Labor thought the agreement with the NLC was so invalid then, it is difficult to see how that same party can now endorse it so happily.

Ferguson claims that the site selection process was voluntary. But not even the NT Government’s participation in this process is voluntary. The proposed Bill will bypass the NT Parliament in the matter — and it will have to: NT Labor passed a unanimous resolution against the proposed waste dump in April 2008. Now, with a consistency that federal Labor might do well to emulate, the NT Government has maintained that it will attempt to block the dump.

The proposed Bill would give the Federal Government power to override the Northern Territory Government, at the same time overriding its environmental protection standards and the Federal Government’s own Environment Minister regarding site selection.

The Central Land Council, whose responsibilities extend just far enough north to include areas affected by the waste dump, also made a submission to the Inquiry on Monday. The CLC wrote:

"It is utterly disingenuous of the Australian Government to claim that this Bill honours the ALPs election commitment to repeal the Commonwealth Radioactive Waste Management Act 2005 (the current Act). This Bill retains the processes and in many cases the actual provisions of the current Act. It largely mirrors the approach taken by the previous government — an approach characterised by the desire to find a politically expedient solution, contempt for state and territory laws, and disregard for decision-making processes enshrined in the Land Rights Act."

Interestingly, the CLC also points out that the proposed Bill makes it impossible for a Land Council to simultaneously protect the rights of its constituents and negotiate consent to a waste dump, since the Bill requires a Land Council to consent to anything that might be done to — or on, or near — a site, while taking it on trust that "anything" might include, and still somehow safeguard, the sacred sites in its care. "It is virtually impossible for a Land Council to meet the requirements," said the CLC.

With a current arrangement like this which makes things so easy for the Federal Government, there can be little wonder they are so keen for the original agreement with the NLC to stand.

For "agreeing" to the dump, the community would receive $12 million dollars — including $11 million for a "charitable trust" and $1 million for scholarships. However the details of the agreement have not been released and repeated requests from various media and interested parties to see a copy of it have been denied. The Northern Land Council says this refusal protects their rights in making a private business deal. But the waste dump would be a publicly funded facility with potentially serious public health ramifications, while environmentalists argue that it should be open to some level of transparency.

Essentially the new Bill proposes a backdated nomination process which instantly legitimises the existing agreement, removes any environmental protection measures in the site selection process, and presumes the site will be on Muckaty. This is consent by stealth rather than by any principle of volunteering.

At Saturday’s protest in Tennant Creek, Diane Stokes of the Yapa Yapa group said, "We’ve got to talk to the NLC and let them know that we are the traditional owners of the land … we were supposed to be consulted when they were talking about the waste dump before."

Ngapa Traditional Owner Mark Lane also addressed the meeting. "Old people were given this country for family to look after, not to put poison or anything in there," he said. "We’ve got to stop this toxic waste because they are going to put it on a man’s sacred site." Lane said two sacred sites were on the area, one with strong ceremonial importance for men, and interfering with the site was very dangerous.

It’s not just the Traditional Owners who are angry about this consultation mess. NT Chief Minister Paul Henderson told the inquiry, "Public consultation should establish public consent — not the consent of a handful of people but broad-based public consent … I find it astounding we make the decision to put this at Muckaty without even an EIS (environmental impact statement)."

Henderson is also angry that the Federal Government has chosen a site in his jurisdiction as a soft target. The presumption that the site will be on Aboriginal land in the Northern Territory is a legal convenience, as this is the only situation where all other rights to the land can be so easily overridden. It will be interesting to see whether this disagreement gets a mention at next week’s COAG meeting, or adds any power to the current push for statehood in the NT.

Other elected officials are opposed also. Member for Barkly, Gerry McCarthy, has challenged the Northern Land Council’s chief executive, Kim Hill, to a debate. Hill has countered that McCarthy should be debating Ferguson.

On Monday, the CLC suggested that all interested Indigenous groups get together to resolve the situation between themselves.

For his part, Ferguson maintains that the right people have been consulted and that the existing agreement constitutes a voluntary nomination which "requires me to actually take it forward in good faith".

"If there is any disputation to the land council’s decision-making process, let it go to court," he said. And that is exactly where it’s headed. The next step for opposed Traditional Owners and environmentalists is to mount a challenge in the Federal Court. The grounds of that challenge are still being established.

The nuclear waste issue is also on the agenda in the US, where Barack Obama has made good on his promise to cancel the Yucca Mountain dump site in Nevada. But now he is having trouble getting his cancellation of the site through Congress. What’s more, the withdrawal is also being challenged in court by the states of Nevada and South Carolina and several nuclear power plants, which still need somewhere to send their radioactive material. It seems no one wants custody of nuclear waste — not even the companies producing it.

Meanwhile, Australia’s nuclear waste — currently in storage in Scotland and France — is due back in Australia by 2014, putting pressure on Ferguson to get a dump organised. If establishing genuine consent for a dump is proving so difficult for the Federal Government, it is hard to see how they will succeed with the long-term management of radioactive waste.