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

Madam Acting Deputy President Crossin, this is a committee which you chaired, so I suppose it is fortunate for me that you are in the chair tonight, partly because it means you are less likely to heckle me! I think this is very important.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I hope that is not a reflection on the chair, Senator Ludlam!

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

Absolutely not, Madam Acting Deputy President. I note that we do not have a great deal of time for this debate. However, I would like to put a few remarks on the record before we rise for the evening. We deeply regret that the Legal and Constitutional Affairs Legislation Committee has decided in its report on the Northern Land Council's evidence to the committee's inquiry into the provisions of the National Radioactive Waste Management Bill 2010 that it could not conclude that the evidence provided by the Northern Land Council misled its inquiry into the bill or raised any matter of privilege for future consideration by the Senate. This is an extremely important matter, and it is something that I appreciate that the chair of the Legal and Constitutional Affairs Legislation Committee, to her credit, did acknowledge was important enough to bring back to the committee—because this is a matter that has been ongoing for a number of years—for a further look. It rests on a bill that is before this very chamber currently. It was a matter that had an hour's worth of debate yesterday, and it has been with the Senate, I believe, for about a year.

The committee in this instance decided that it could not make a conclusion, and it did not find either way. But in fact my contention, which I will speak to in greater detail when this matter returns to the chamber, is that the committee effectively decided that it would not make a conclusion or come to a decision. The committee should have taken the time and the opportunity to examine the documents that were before it, and I will go into some detail as to what the committee could have done rather than simply coming to the view that it was not competent or able to find one way or another.

This matter is extremely important. A particular community in the Northern Territory has been targeted for a national radioactive waste dump in Australia. We have never had such a facility before. It has been very, very contentious for governments of all kinds, and it is something that has been extremely vexed—an issue that neither Labor nor the conservatives have ever been able to get a grip on. In this instance, the site has been targeted for a particular cattle station about 120 kilometres north of Tennant Creek, and there is a serious dispute over whether the land should have been nominated from the Northern Land Council to the federal government. It is a site that is explicitly named and targeted in the legislation that is before this chamber. It is not an abstract matter. This is a site that has actually been identified—we had this confirmed again yesterday—as the only site that was in consideration by the federal government. It was named and locked in in the legislation before the parliament, yet the people of that region have taken a very serious dispute to the Federal Court over whether that land should have been forwarded in the first place.

It was up to the Legal and Constitutional Affairs Legislation Committee in examining the bill—which it did with extremely truncated and narrow terms of reference the year before last—to decide whether or not this bill should proceed. It did decide, in the absence of quite a number of very important documents that the Northern Land Council refused to disclose to the committee when they gave evidence, to recommend that the bill be proceeded with. At the time, my office forwarded quite a detailed dissenting report saying that, in fact, the committee had not done its job; even within its narrow terms of reference, it simply had not done its job. It had not sought the requisite information to allow it to properly fulfil its function, and it has done so again. In the report that we are remarking on tonight, the committee has effectively said, 'We don't have the requisite information to properly fulfil our function. We're not going to seek it and therefore we're not going to make a finding.' What makes this dangerous is that, in the absence of that information and in the absence of a proper effort to seek that information and evaluate it, the committee nonetheless recommends that the bill be passed—and that, I think, is an extraordinary oversight. It is what these committees are set up to do. It is the reason that we take evidence, take up witnesses' valuable time and travel around the country seeking evidence.

The committee recommended in May 2010 that the bill be passed, acknowledging at the time that it did not have access to key documents and information, in particular the deed of agreement relating to the nomina­tion—that is very, very important—or the anthropological reports that were relied upon by the Northern Land Council in forwarding this nomination and in claiming that it was in fact a nomination conforming to the land rights act. The committee at the time was therefore forced to rely heavily on testimony and assertions of those who did have access to the documents, namely the Northern Land Council.

The anthropology report, I think, is the key one. It was withheld from the committee, it has been withheld from other parties to the dispute until, I think, quite recently and it is the basis upon which the Northern Land Council nomination of the Muckaty site rests. The land council's entire case rests on this anthropological report that nobody, including named parties to the Muckaty Land Trust, has seen. The NLC is rightly recognised in the May 2010 committee report as the relevant representative body and its evidence and submissions are quoted throughout. The committee report of 2010 includes NLC assertions that it has fulfilled its statutory requirements to comprehensive­ly consult with Aboriginal traditional owners and that it had correctly determined one particular clan of the Ngapa group as the rightful owners of the Muckaty nomination.

If the chair were to speak on this matter she would probably assert that, in fact, a Senate committee is not a properly qualified body to determine land rights disputes between contesting traditional owners, and on that I would agree with her. I hope I have not verballed her there, but, of course, the committee is not a properly qualified body. We do not have a single Aboriginal person on the committee to begin with and none of us is an anthropologist, so we are not a properly qualified body to adjudicate that dispute. It is extremely unfortunate, in fact, that that matter has come to the Federal Court for adjudication, because, of course, the people bringing the action have much better things to do. There are things that are much more urgently on their radar than fighting off this proposal for a waste dump.

However, in the absence of having the expertise to adjudicate the dispute, the least the committee should have done was to have sought the documents to be able to test the assertions that were put to the committee by the Northern Land Council, which were, in effect, put to the committee on the basis of, 'Trust us—we are the experts.' If the nomina­tion had been uncontested, I suspect that would have been enough and the matter would have travelled no further. However, in my view, where there is smoke there is fire. Not only has the nomination by the NLC been contested; it has been contested by a large group of people who have taken their dispute all the way to the Federal Court. They, regrettably, have had to engage legal counsel to fight this nomination in the courts. We will not know whether there is fire behind the smoke, because, of course, the key documents were withheld from the committee.

The Legal and Constitutional Affairs Committee did hold a brief hearing into the matters that were raised in this objection, which I put to the committee, that in fact the Northern Land Council may have knowingly misled the Legal and Constitutional Affairs Committee. That effectively was what this report was about: whether information that should have been provided to the committee was withheld or not. The committee in the end decided that we did not have enough information to make a call one way or another. My key contention is: we did not ask for that information and it was our job to ask. So we dissented. I strongly disagree with the findings of the committee, although I do thank the committee for at least responding to my letter. Pushing it one degree further, we wrote to the Northern Land Council and sought their views. But I was concerned about the inconsistencies between evidence given by the NLC and open-source reporting and direct testimony from traditional owners and elders of that region who strongly contested the nomina­tion and felt that, in fact, there was cause here to take it further.

I continue to be concerned that the inconsistencies are so great as to potentially constitute the misleading of the committee. We were held up, obviously, on the distinct­ion between whether we were knowingly misled or unknowingly misled. We will not be able to find that out—not because it is beyond the wit or the competency of the committee to inquire in those matters but because we did not seek to ask.

I find it a 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 been picked up and cut and pasted exactly where the former government left off. Our leaders may have changed, but our resources minister effectively has not. I continue to recall and remark that the government opened its first term with an apology and that, if this legislation is allowed to proceed, it will close this term owing another apology to Aboriginal Australians. I think the Legal and Constitutional Affairs Committee missed an important opportunity to right what will be seen, if we entrench it and lock it in, as a historical injustice that should not be allowed to stand.

Question agreed to.