Jenny Macklin (Jagajaga, Australian Labor Party, Deputy Leader of the Opposition) Share this | Hansard source

Last night I moved a second reading amendment to this legislation, and I will pick up where I left off. The stated purpose of the Commonwealth Radioactive Waste Management Act 2005 was to put beyond doubt the Commonwealth’s power to conduct activities related to siting, constructing and operating a radioactive waste management facility in the Northern Territory. The 2005 act contains a number of provisions excluding procedural fairness in relation to selecting a site for the facility. The Commonwealth Radioactive Waste Management (Related Amendment) Act 2005 excludes application of judicial review to the minister’s decision on a facility site. Labor opposed the 2005 bills on a number of grounds, all of which remain relevant today.

The government’s acknowledged purpose for these provisions is to prevent local individuals or communities, representative bodies or state or territory governments being able to undertake legal objections to the Commonwealth’s actions which may delay the project. The government stated at the time of parliamentary debate that these provisions give the Commonwealth some certainty, subject to normal regulatory processes, of having a facility operating by 2011 when repatriation of spent fuel reprocessing waste from the United Kingdom is due to commence.

Labor does not oppose the establishment of a nuclear waste facility; indeed, Labor explicitly agrees that there is a need for a properly sited, properly operating facility to securely handle and store the low- and intermediate-level waste produced by the use of radioactive materials for research and for industrial and health and medical purposes. However, we remain firmly of the view that the siting, establishment and operation of such a facility needs to be done in an open and transparent fashion, in full consultation with local communities and with the relevant state and territory governments. Such a process would be in full compliance with the recommended approach set out by the International Atomic Energy Agency.

The Commonwealth has approximately 3,600 cubic metres of low-level waste, half of which is at Woomera, and produces around 30 cubic metres of low-level waste per year. The Commonwealth has approximately 400 cubic metres of intermediate-level waste in Australia and generates less than five cubic metres per year of this type of waste. Intermediate-level waste generated from spent fuel has been sent to France—there is 6½ cubic metres there—and the United Kingdom, where there is 26½ cubic metres.

The waste dump that is being planned by this government is intended to house waste from the new reactor presently under construction; the old reactor, which is still operational, including waste from France and the United Kingdom; Defence waste held at various sites across Australia, including contaminated soil from the Woomera test site; Commonwealth Scientific and Industrial Research Organisation accelerator waste; and other Commonwealth waste. The original 2005 act provides for site assessments of three potential sites on Defence land for that Commonwealth waste dump—these being: Fishers Ridge, near Katherine; Harts Range, approximately 200 kilometres north-east of Alice Springs; and Mount Everard, approximately 42 kilometres north-west of Alice Springs.

Before I turn to the specific provisions of the amendment bill before us, we do need to consider the nature of the amendments to the 2005 bill which were moved on 1 November last year by the government member for Solomon, Mr Tollner, which the government supported into law. You would have to say that these were the 30 pieces of silver that the government threw the member for Solomon to get him to recant his pre-election promise that the Northern Territory would not have a dump foisted on it. The amendments moved by the member for Solomon provided for the Northern Territory Chief Minister and Aboriginal land trusts or land councils to nominate potential sites for the waste dump in addition to the three sites set out in that bill.

Given that the Chief Minister of the Northern Territory has always been, and remains, implacably committed to representing her community’s opposition to this waste dump being imposed on the Northern Territory, this amendment moved by the member for Solomon was clearly designed to smooth the way for a nomination by a land council. Given the Central Land Council also remains utterly opposed, that only leaves the Northern Land Council as a possibility. Included in the amendments moved by the member for Solomon was a set of criteria or rules against which such a nomination should be judged, including provisions that the process of nomination by a land council must demonstrate evidence of a number of things—and these matters are very important in relation to today’s bill. What the member for Solomon put in his amendments were the following: consultation with traditional owners; that the traditional owners understand the nomination; that they have consented as a group; and that any community or group that may be affected has been consulted and had adequate opportunity to express its view. It is particularly important to recall the rationale the member for Solomon advanced for these amendments, and I quote him:

The main rationale for these amendments is to ensure that, firstly, Territorians do have a say in the siting of the facility—

that is, the radioactive waste dump—

and, secondly, there is an enhanced level of safety and security enshrined in the legislation. The Northern Territory government and the land councils of the Northern Territory should have an increased opportunity to be involved in the nomination of possible sites for the radioactive waste management facility.

Interestingly, the member for Solomon chose not to inform the House why he chose those particular rules for nominations to be deemed valid.

I now turn to the specific provisions of the amendment bill before us. These provisions all relate, in one way or another, to the nomination process placed in the previous bill by the member for Solomon late last year. Whilst the Minister for Education, Science and Training chose not to reveal an important fact in her second reading speech to the House, the Senate statement of reasons for introduction briefly states the circumstances which have led to the drafting of the bill that is before us, namely:

The bill addresses concerns raised by the Northern Land Council (NLC) in relation to nominating a site under the CRWM Act. If not addressed, the NLC may be unwilling to nominate a site should a community within its jurisdiction wish to volunteer its land.

Whilst my office has inquired of departmental officers as to the nature of these concerns raised by the Northern Land Council, apparently no further information could be made available. Therefore I would certainly like to see a response from the minister when she closes this debate as to the nature of the concerns raised by the Northern Land Council so that the House can decide for itself whether the bill before us properly meets the concerns raised.

The acknowledged purpose of the legal challenge provisions of the 2005 act is to prevent local individuals, communities, representative bodies and state or territory governments from being able to undertake legal objections to the Commonwealth’s actions which may delay the project. Due to the late consideration of the Tollner amendments, departmental officers advise that the same protections against legal challenges to the Commonwealth’s actions were not applied consistently to the site nomination procedures inserted by the Tollner amendments.

In effect, the provisions of the bill before us today—and this is very important—will extend the current protection from judicial review further to the processes and decision making of land councils in the Northern Territory, who are statutory agencies for the purposes of the judicial review act. Similarly, the bill proposes to extend the current provision that no person is entitled to procedural fairness so as to ensure that it applies to a nomination of a site as provided for by the Tollner amendments to the principal act. Labor opposed the corresponding provisions in the 2005 bill on the grounds that they were heavy-handed and attempted to remove—and of course they do now remove—important rights to judicial scrutiny and review from the site decision-making process. Labor will oppose the provisions of the current bill which remove those same rights from the nomination decision-making process.

I now turn to the provisions of the bill relating to the return to the original Indigenous owners of land nominated and used for a radioactive waste facility. Section 119 of the Lands Acquisition Act 1989 allows the Commonwealth to dispose of Commonwealth land. However, the department has advised my office that there is some legal doubt that this power allows the Commonwealth to grant land title with the same status as land granted under the Aboriginal Land Rights (Northern Territory) Act 1976. Accordingly, the government argues that the provisions of this bill are necessary to ensure that, where acquired land is Aboriginal land immediately before the acquisition, such land may be returned with the same status as Aboriginal land.

The department has indicated in briefings that any site will be required for the operations of the waste facility for at least 100 years and, even when waste is no longer being accepted into the site, it will need to be closely monitored for at least a further 200-year period. Therefore, any possible return of Aboriginal land to original owners will not take place for at least 300 years. However, legal advice that I have received indicates that the proposed provision is not legally necessary as the government of the time could simply hand the land over to traditional owners under the provisions of the land rights act if, in fact, it applies at the time.

Under this bill, the government does not have to make any such hand-back. The bill simply provides for a hand-back should the minister of the time determine that it is safe to do so on the advice of the Australian Radiation Protection and Nuclear Safety Agency or its equivalent. We have to ask: why all this fanfare of caring about Indigenous rights, when the government could hand it back anyway at some time in the future? It appears that this bill could be seen as providing some political cover for the Northern Land Council should they make a nomination and subsequently face criticism for giving away hard-won ownership of traditional lands for three centuries or more.

Now let us have a look at the clauses of the bill which address the issue of potential invalid nominations made under the provisions inserted in the principal act by the member for Solomon, which I will call the ‘Tollner amendments’. There are two ways any nomination of land for a radioactive waste dump could be made invalid: procedural inadequacies or, a more substantive issue, a failure to comply with the rules of nomination so carefully inserted by the member for Solomon.

Given that a procedural inadequacy, such as not lodging a nomination in writing, is extremely unlikely, we conclude that the only likely noncompliance by any future nomination relates to the nomination rules. In other words, this bill proposes to validate a nomination which would otherwise be automatically ruled invalid for ministerial consideration because, for instance, traditional owners have not been informed of the nomination, or that traditional owners did not properly understand that their land was being nominated, or that traditional owners had not consented to the nomination, or that other affected communities or groups, such as in neighbouring lands, had not been consulted or given an opportunity to express their views.

The bill before us proposes a new section which provides that a failure to abide by these currently binding rules of nomination will not affect the validity of a nomination. In effect, these current statutory rules would become mere guidance, because a failure of the minister or land council to abide by these rules will not render a nomination as unacceptable. A site could still be nominated and accepted even though traditional owners do not know it has been or do not agree with it being used to dump radioactive waste.

In addition, it is also important to recognise that this provision would remove the current statutory right of ‘affected’ neighbouring communities or groups to even be consulted or to express their view. Given that under the Tollner amendments to the act these groups are not required to consent to the proposed nomination, the provision aims squarely at their statutory right to even express a view.

As well as being an almighty slap in the face for the member for Solomon through this outright repudiation of his rules of nomination, the Howard government has also completely backtracked on its own rhetoric about fully consulting with and achieving informed consent from all affected local communities and groups, in particular the Indigenous traditional owners of any nominated sites. The provisions of the bill in this regard are a direct contradiction of the minister’s own commitments to the parliament in her second reading speech on this bill, when she stated:

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.

You would have to say, when you look at the detail of the bill, that the minister’s words in her second reading speech are just that—words. This minister knows very well that her speech will have legal weight only if a court is unsure of the parliament’s intent on the face of legislation. The minister knows that the proposed words of this bill are crystal clear—any nomination which does not comply with the nomination rules requiring full and informed consent will still be rendered invalid.

Faced with the clear intent and outcomes of the bill before us, the minister’s contradictory commitment in her speech is simply meaningless rhetoric, providing no comfort whatsoever to any traditional owner or their representatives. Importantly, the outcome of the proposals contained in this bill is also in conflict with the NLC full council resolution of October 2005, which provided a mandate for the Northern Land Council’s further dialogue with the government on a possible nomination, and I quote:

The Northern Land Council supports an amendment to the Commonwealth Radioactive Waste Management Bill 2005 to enable a Land Council to nominate a site in the Northern Territory as a radioactive waste facility, provided that:

the traditional owners of the site agree;

sacred sites and heritage are protected (including under current Commonwealth and NT legislation);

environment protection requirements are met (including under current Commonwealth and NT legislation);

Aboriginal land is not acquired or native title extinguished (unless with traditional owners’ consent).

Given the clear intent of this resolution, there is a serious question to be asked here: has the Northern Land Council approved the proposal to remove the mandatory nomination rules which closely parallel their own requirements? In effect, the current bill proposes to relegate both the Northern Land Council’s resolution and the nomination rules inserted by the government’s own MP for Solomon into irrelevance and will be opposed by Labor as an important matter of principle.

In addition to the three potential sites included in the 2005 act, departmental officers have confirmed in the recent round of Senate estimates hearings that they have been discussing possible further nominations with the Northern Land Council. Officers have also assured my office that there has been no further definite nomination to date. They have also advised that the details of those discussions are confidential at this stage but, once again, the minister may see fit to inform the House if this continues to be the case when she closes the debate.

However, I am aware that there are a number of possible sites under consideration for nomination, one of which is a property known as Muckatty Station. I am aware of this possibility because I have spoken to traditional owners and families from the property and surrounding areas who came to see me about the possible nomination of their lands for use as a nuclear waste dump. These traditional owners oppose the nomination of Muckatty. The women who came to see me expressed their considerable concern, indeed their distress, at this prospect. They told me they feel that their rights, their views, their concerns and their lands are being trampled upon by this government.

The bill under consideration by the House today will magnify that distress because it openly and harshly rips away the legal requirement that any nomination of Indigenous land for a nuclear waste dump must have the full and informed consent of the traditional owners of that land. In addition, if Muckatty does indeed turn out to be nominated, it may also highlight the removal of rights of affected neighbouring groups to be consulted and to have their views taken into account. Muckatty is situated right on the border of Northern Land Council and Central Land Council lands, and the Central Land Council remains implacably opposed to the use of Indigenous land for the dumping of radioactive waste.

We need to be very clear about this: under this bill before us today there will be no enforceable rights of the traditional owners or affected persons to be informed—to ensure that implications of a radioactive waste dump are fully understood—or to give or withhold consent for their traditional lands to be compulsorily acquired and used for the handling and storage of radioactive waste for at least 300 years. And if that is not enough, there will be no enforceable right to receive their land back once the Commonwealth’s use as a waste dump has concluded; the bill simply provides that it may be handed back. All traditional owners, all their representative groups and all Northern Territorians should understand this point: the Howard government is intent on making sure that you have no rights, no legal review avenues, no right to express your view and no right to give informed consent and absolutely no say in this government’s blind pursuit of dumping nuclear waste in the Territory.

The government’s history in relation to the nuclear waste facility in the Northern Territory gives us a very real indication of how they propose to move on nuclear issues writ large, in taking Australia much further down the nuclear road with 25 nuclear power stations now proposed by Mr Howard’s nuclear inquiry—and, of course, there will be associated radioactive waste dumps. If the Howard government cannot consult, cannot build community consensus, cannot leave important legal rights untrampled, cannot gain the informed consent of Indigenous people for a low- and medium-level nuclear waste facility, what hope can we have that they will comply with International Atomic Energy Agency best practice guidelines in relation to nuclear power and the resulting radioactive waste? I know that many of my colleagues are keen to explore these matters further and in much greater detail than I have time for today. For all the reasons I have set out, Labor will not support this bill and I urge the House to support the amendment I have moved.

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