Muckaty Court report Day 3 - June 4

Court Report Day 3 – when is a dump not a dump?

By Padraic Gibson - 5 June 5 2014

Image: Beyond Nuclear Initiative

The morning opened with further introduction to the anthropological evidence available for the case from Ron Merkel QC and then David Yarrow, another barrister acting for Muckaty Traditional Owners challenging the nomination of the Muckaty site for a national radioactive waste dump.

Mr Merkel handed up to the court two anthropologist reports completed by the NLC specifically for the waste dump nomination in 2006. Mr Merkel argued there were differences between the first report, prepared exclusively by the NLC anthropologists, and the second, which had been both “heavily edited” and “rewritten” by NLC principal lawyer Ron Levy, despite his signature being absent.

The first report was 50 pages and the second was 20, Mr Merkel said. 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”.

Mr Yarrow focussed his submissions on explaining the difference between the NLC report relied upon for the nomination and the anthropology that had informed the original land grant of Muckaty to Traditional Owners by Justice Gray, under the Aboriginal Lands Rights Act NT in 1993. He reiterated the case that there is no evidence whatsoever in the original report that would justify the “Lauder branch” had exclusive claim to this site. Indeed, Mr Yarrow pointed to some evidence in the report that said another clan group, the Yapa Yapa, have primary responsibility for the site.

More significant than an argument about who has primary responsibility however, is the emphasis in the original report on shared responsibility for sites across Muckaty by all clan groups. Mr Yarrow argued that this fundamental principle that underpins the land grant had been abandoned by the NLC in their nomination of the site on Muckaty.

The Commonwealth barrister Dr Donohue begun his submissions just before lunch, fiercely defending the NLC's process in making the nomination.

Despite the focus of the legal proceedings on the alleged misconduct of the NLC, from the perspective of the campaign against the Muckaty dump, the Commonwealth submissions provided an important reminder that the central problem here is the discriminatory actions of the government in targeting impoverished Aboriginal communities for some of Australia's most toxic industrial waste.

The genesis of the Muckaty dump nomination is the Commonwealth push to establish a waste dump on Aboriginal land. The court heard evidence of Commonwealth representatives starting to attend full council meetings of the Northern Land Council in late 2005, to pitch the idea of a dump to Aboriginal land owners.

Both the Commonwealth presentations to the NLC full council in 2005 and the Commonwealth barristers presentations to the court yesterday were fiercely ideological around the question of nuclear waste – arguing that the dump would perfectly safe.

Maintaining this position requires severely playing down the presence of reprocessed spent nuclear fuel rods at the waste dump. The government produced video shown to the NLC in 2005, and yesterday in court for example, contained no information about the spent nuclear fuel and the dangerous properties, including the length of time it is required to be isolated from people and the environment.

Dr Donohue's presentation about the waste dump to the court opened with a lengthy explanation about the “exceptionally low-level” waste such as hospital gloves and x-ray equipment planned for Muckaty, with plenty of discussion about the lack of risk presented by this, before moving to a cursory discussion of the spent fuel. From my discussions with Traditional Owners at Muckaty I know that similar tactics were used by the Commonwealth in consultation meetings, creating an early impression that it was “just hospital stuff” planned for Muckaty.

As Traditional Owners have consistently pointed out – if this stuff is so safe, why do you want to put it so far away from the cities?

The second ideological argument put strongly by the Commonwealth, both in their submissions to court and in their presentations to Traditional Owners during consultations, is that the waste dump is needed to allow for the continued operation of nuclear medicine in Australia. This argument has been comprehensively rebuffed by health professionals, such as Dr Michael Fonda from the Public Health Association, who has highlighted the cruelty of making Traditional Owners, who live in communities that suffer from developing world health conditions, feel guilty that somehow their opposition to a waste dump would be an impediment to others receiving health care.

See for example the short video: Nuclear Furphies and Political Follies.

Dr Donohue even argued that the term “waste dump” was incorrect, because intermediate-level waste would be held in an above ground storage shed and the contract with the NLC is “only” to keep them there for 200 years. No mention was made about provisions in the 2005 Radioactive Waste Management Act which stipulate that the Commonwealth will not hand back any land that had been contaminated. This also ignores the fact that the “low level” waste is set be buried, with no intention of recovery.

The nature of the waste dump then, is shaping up to be a central issue in the case. In defending the NLC's consultation process for example, the Commonwealth cited minutes from meetings of Muckaty Traditional Owners where lawyer Ron Levy has said that the role of the NLC was “just to explain” the proposal, but it was up to the TOs themselves to decide. For the purposes of establishing wether there was informed consent however, the way the waste dump was characterised to Traditional Owners will be crucial.

The Commonwealth closed the day with a fierce defence of the NLC's consultation process, and particularly the actions of lawyer Ron Levy.

Lists of attendees at early meetings were tabled to argue the case that consultation had taken place widely and that senior members of all clans had agreed that the narrow Lauder family group had sole ownership rights over the nominated site.

However, some contradictions in this evidence are already apparent. For example, senior clan leaders were quoted as saying that dreamings belonging to clan groups other than the Lauder's “passed through” the nominated site. Records of meetings relied upon to establish consent were apparently never taken.

In my discussions with Muckaty Traditional owners over the last seven years, key witnesses relied upon by the Commonwealth have strongly rejected the assertion that they ever consented to the waste dump, or ever said the decision should rest with the narrow family group in question. Next week they will have a chance to be heard directly, as the court relocates to the Northern Territory for hearings both at Muckaty itself and in Tennant Creek.

Source: Beyond Nuclear Initiative