Scott Ludlam (WA, Australian Greens) Share this | Hansard source

Minister, I think some of these conspiracies are not theories; that is the only sensible response to that. I do not think this is a conspiracy, because there is really only one key actor. This is not about a conspiracy, this is about total ministerial discretion to do as one individual pleases. We do not need to invoke some kind of shadowy conspiracy between ministers of the government or people in the industry, this is simply about the ability of a minister to engage in a box-ticking exercise. I do not think anybody in their right mind believes that it is about a spelling mistake or punctuation that is out of place.

What it means is that if a nomination comes through that is technically dodgy but politically feasible it can be accepted, and this chain of events and series of processes can unfold. People can spend years, as Diane and many others in Tennant Creek have, reaping the consequences of an initial dodgy decision. It is the contention of the applicants to the Federal Court action that the initial decision around the nomination of the Muckaty site—something that Senator Scullion has had a degree of experience in and has been involved in since before I came along—and the initial nomination of that land were wrong. The right procedures were not followed under the Aboriginal Land Rights Act all those years ago, in 2006 when the nomination first came forward. That goes to the series of amendments that the Senate just chose to vote down. This is not about spelling mistakes; this is about people's lives being put on hold for up to six years while the parliament stumbles through a series of processes, while the courts work through their processes, while the campaign to support them gets on its feet. If the original nomination had been at least through the very limited guidelines that applied at the time through the Howard-era legislation, we could have saved these people that misery.

Shortly I will move a set of amendments that ensures that any nomination complies with the Aboriginal Land Rights Act. Of course, in the Territory there is a unique setup and things apply somewhat differently to how they do in the rest of the country. These amendments effectively go to fulfilling a promise that was made by the Labor Party. The 2005 act ensured that compliance with the Aboriginal Land Rights Act was not a prerequisite to the right of the land councils to make a nomination. Perhaps the minister will jump up in a short while and tell me that again it is a legal technicality that appears all the way through matters dealing with the land rights act, that compliance with the land rights act is not a prerequisite to the right of a land council to forward a nomination. Let us spell that out: it can be in breach of ALRA and it will not invalidate the nomination. This is not about a spelling mistake, Minister.

The 2005 act ensured that a decision by the minister to approve a nomination or declare a facility did not require a finding that voluntary informed consent—there is that word again—under the Aboriginal Land Rights Act was provided, that there were no rights to be heard on this issue by affected parties and that such a decision was not reviewable by the courts on that basis. In 2006, the time when the opposition by local traditional owners to the impending Muckaty nomination was becoming obvious, further amendments were passed. At the time I was working for Senator Siewert, and I remember it very well. We had already had—in that same infamous fortnight—WorkChoices, Welfare to Work and the introduction of voluntary student unionism passed through here along with terror laws. In that period of a matter of hours at most—perhaps Senator Scullion remembers exactly how long—the 2005 Radioactive Waste Management Act was rammed through this place, against the opposition of the Australian Greens, the Democrats and, I believe, the Labor Party.

It was rammed through here because the Howard government knew that at the time they had the numbers. I suspect they did not even read the committee reports. They would not have read most of the evidence that came through from witnesses who said this was procedurally wrong, wrong from a land rights perspective and wrong from a human rights perspective. In late 2006 amendments were passed, about a year after the 2005 act got up. These amendments effectively clarified the role of the land councils in forwarding nominations. I do not think it is breaching confidence to say that at the time the Muckaty nomination was afoot, the government needed clarity to make sure that it would be uncontested, that people who had been left outside the loop and have eventually had to find their recourse through the courts could not fight the thing. And so it was clarified in the parliament.

Those amendments, among other things, ensured that the act of the nomination itself, in addition to the minister's decisions about such nominations, could not be subject to procedural fairness or legal challenge on the basis of absence of voluntary informed consent. The Commonwealth Radioactive Waste Management Act, which is still in force, simply overrode the land rights act. There is no nicer way of putting it than that. This was one of the aspects which was fiercely objected to by the Labor Party. Perhaps later in the debate I can quote Senator Crossin, Senator Carr or a number of other Labor Party spokesmen who beat the hell out of Senator Scullion and his party at the time for putting these amendments up. They then turned around after the election and cut and pasted the damn thing and carried straight on with what the Howard government had been doing. It is beyond hypocrisy. It is through hypocrisy and out the other side. I am not sure what the word is for such behaviour, but that is what we have been witnessing for years and years.

Procedures that required informed consent from all affected groups and peoples were deleted and decision-making processes in the land rights act were avoided. In March 2007 we found those strong and principled media statements coming from Senator Carr, from Senator Crossin, from Warren Snowdon. Here is what they committed the federal Labor Party to doing. They committed the federal Labor Party to ensure that any proposal for the siting of nuclear waste facilities on Aboriginal land in the Northern Territory would adhere to the requirements that exist under the Aboriginal Land Rights Act of the Northern Territory. How much things have changed since then. When in opposition Senator Crossin said, 'These lands in the Northern Territory are connected to Indigenous people through their spirituality, so it is not exactly our land, I don't believe, to play around with.' Of course she was right.

The proposed dump site near Tennant Creek in the Northern Territory, which is the only option currently under consideration, is immediately adjacent to a sacred Milwayi men's site known as Kurrakurraja. I do not know whether senators have taken the time to look at some of the maps. People have obviously been walking the country for tens of thousands of years, but in very recent times anthropologists have taken the time to sit down with and speak to some of the old people and map where the sacred sites lie. To Western eyes these things look like dots and rectangles—straight lines on maps—that are then keyed to a database of what some of the senior people have told anthropologists over time. I do not think it is contested that there is a sacred men's site on the rectangle that is marked out for the Muckaty nomination. I think what is contested is who the appropriate people are to speak for that site, but it is not contested that sites are there. We tend to imagine these things as lines on maps or dots on the ground, but the landscape itself was alive. As far as these people are concerned, you cannot just chop rectangles out of it and not expect people's obligations and responsibilities to be disrupted. That is where we come undone with proposals such as this.

The Aboriginal Land Rights Act says:

The Land Council is precluded from taking any action in any matter in connection with the land unless it is satisfied that the traditional Aboriginal owners of that land understand the nature and purpose of the proposed action and, as a group, consent to it.

And:

The Land Council, in turn, is required to have regard to the interests of, and shall consult with, the traditional Aboriginal owners of the land and any other Aboriginals interested in the land.

It sounds pretty clear. Compared to what we ended up with with native title and the divisive and disastrous make-up of the Native Title Act, the land rights act looks pretty progressive. That is perhaps one mistake that the Howard government made when they charged in after telling people there would be no dump in the Northern Territory. There was this strange sleight of hand where it was going to be on an offshore island somehow during the 2007 election. Right after that election, somehow it was in the Northern Territory on one of three Defence sites. That miscalculation was that they believed that the Defence sites simply overrode the land rights act, and obviously that is not the case with the Muckaty nomination. Their other obligation is to ensure that the Aboriginal community or group that may be affected by the proposed action has been consulted and has adequate opportunity to express its views to the land council.

Minister, I might put this question to you now—I believe you might have taken it on notice yesterday. Can you provide for us in whatever degree of detail you or the advisers are able what consultation this minister—we obviously will not hold you responsible for the previous minister—has undertaken, including site visits if there were any beyond what you provided us with yesterday, to the people who believe that all three of those obligations under the land rights act are breached by the Muckaty nomination?