DISSENTING REPORT BY THE AUSTRALIAN GREENS
The Australian Greens deeply regret that the Legal and Constitutional Affairs
Committee has decided it 'cannot conclude that the evidence provided by the NLC
misled its inquiry into the Bill or raises any matter of privilege for future
consideration by the Senate'.
It is that the committee cannot or will not make a conclusion?
Had the Committee taken the time and opportunity to examine documents
and seek expert advice on the legal questions at hand – either in camera or on
the record - its conclusions might have been different. Had the Committee chosen
to do so, it could have become qualified to make a determination, and thereby
fulfil the mandate it set for itself to inquire into the legal and
In not seeking the requisite information to allow it to properly fulfil
its function, the Committee has decided to not decide.
In May 2010, after a rushed and pressured inquiry, the Legal and
Constitutional Committee recommended that the Senate pass the National
Radioactive Waste Management Bill.
The Committee made its recommendation after limiting the focus of its
Inquiry to, 'legal and constitutional matters, including issues relating to
procedural fairness and the Bill’s impacts on, and interaction with, state and
The Committee recommended the Bill be passed acknowledging that it did
not have access to key documents and information, in particular the deed of
agreement relating to the nomination or to anthropological reports.
The Committee was therefore forced to rely heavily on the testimony and
assertions of those who did have access to those documents, the Northern Land
The withheld NLC anthropology report is the basis upon which the NLC
nomination of the Muckaty site rests. Apparently it assigns a particular
portion of land to the Lauder clan of the Ngapa group, quite specifically. This
is contrary to the findings of Justice Gray, the Land Commissioner, and his
report of 18 March 1997 that Ngapa family groups 'share the same sites' and had
'commonality of land interests' on Muckaty Station.
The NLC is recognised in the May 2010 Committee report as the 'relevant
representative body' and its evidence and submissions are quoted throughout.
The Committee report includes NLC assertions that it had fulfilled its
statutory requirement to comprehensively consult with Aboriginal Traditional
Owners and that it had correctly determined the Lauder clan of the Ngapa group
as the rightful owners of the Muckaty nomination.
These assertions pertain directly to the legitimacy of key provisions of
the bill and issues relating to procedural fairness.
The Australian Greens do not believe these assertions are supportable,
and that it is the job of this Committee to test these
Evidence taken through submissions and public hearings during the
Committee's own Inquiries make it clear that the lands of Muckaty station are
not carved up in the fashion the secret NLC anthropology report purports.
The basis upon which the Muckaty Land
Trust was established clearly recognised overlapping and group responsibilities
for this country.
The original finding of the Aboriginal Land Commission, was that there
is joint and interconnected ownership between the five main groups where
dreaming overlapped. This was a core reason why a single Land Trust was
granted to a number of groups – Milwayi, Yapayapa,
Ngarrka and perhaps the Winrtiku and Ngapa. The report explicitly
stated that the site nominated for a nuclear waste repository was jointly owned
by at least three of those five groups.
The documents that came to light in the National Archives on 9 May 2011
only reinforce this finding, despite the NLC dismissing this as merely a
casebook. Those documents provide details about sacred places for ceremonial
men's business, and detailed indications of shared ownership. They were not
disclosed, explained or referenced.
If these facts contained therein are deemed irrelevant for the NLC, why
have they not made better attempts to explain the discrepancy between the
secret report written by Dr Peter Sutton, Dr David Nash and Petronella Morel
(all current or previous NLC employees) and the prevailing opinion by every
These matters are before the Federal Court for good reason. The case
will no doubt draw attention to the fact that the leader of the group that
supposedly has exclusive rights over the floodplain and earthquake zone of
Muckaty was a member of the Full Council of the NLC at the time of the
nomination, and her husband was also on the Full Council and the Executive
I thank the Committee for responding to my letter that raised a question
as to the extent that the NLC's submissions were contradictory to the evidence presented
by eminent lawyers from the National Archive whether the NLC knowingly misled
the Committee; if so, whether a possible contempt has been committed in that
I was concerned that the inconsistencies are so great as to potentially
constitute the misleading of the Committee.
I continue to be concerned that the inconsistencies are so great as to
potentially constitute the misleading of the Committee.
I also continue to find it a profound
shock, as do many supporters of the Australian Labor Party that coercive
attempts to dump radioactive waste out in 'terra nullius' did not end with the
election of the Rudd Government, but have in fact picked up exactly where the former
Government left off. While our leaders have changed, our Resources Minister
I continue to recall that this
government opened its first term with an apology and that if this legislation
is allowed to proceed, it will close its second term owing another apology to
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