Archive for the ‘legal’ Category

The Australian Government has no legal base to impose a nuclear waste dump on South Australia

July 4, 2018

The Minister claims a need for this dump is generated by civilian radioisotope production & not from military use – therefore it cannot be legitimised under auspices of the S.51(vi) Defence umbrella.

there is no legal base for the Commonwealth to enforce State acceptance of radioactive waste.

ENuFF-SA Examining Commonwealth Power to Enforce Nuke Dump – part 1, 4th July 2018

SOUTH AUSTRALIAN LAW

  1. The 2015-16 $10+ million South Australian Nuclear Fuel Cycle Royal Commission found that: “The construction or operation of a facility for storage and disposal of nuclear waste, along with the importation or transport of nuclear waste, is unlawful in South Australia”. The amendment or repeal of the Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA) would therefore be required prior to any substantive progress being made in further developing any proposal.
  2. “ 1 The Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA)2 must be amended or repealed PRIOR TO ANY SUBSTANTIVE PROGRESS towards developing a radioactive waste facility in this State. 2.
  3. Portions of The Act which prohibit the establishment of nuclear waste storage facilities include:

S.8 against the construction or operation of such;

• S.9 making it illegal to import or transport nuclear waste, &

• S.13 “No public money to be used to encourage or finance construction or operation of nuclear waste storage facility”

S.13.1 also provides such prohibition “Despite any Act or law to the contrary ….”

  1. The newly elected Liberal Premier Steven Marshall has previously categorically stated: “A Marshall Liberal Government will not support the building of a nuclear waste repository in South Australia.“ 4 : & in answer to a February 2018 Election Survey the South Australian Liberal Party responded: “The Liberal Party supports the current Nuclear Waste Storage Facility (Prohibition) Act 2000“ 5 .
  2. 4. To date (June 2018) the NRWMF-T has expended $40+ million of taxpayers PUBLIC MONEY towards: not only encouraging ‘local communities’ acceptance for a nuclear waste storage facility within South Australia; but also financing active on-site preliminary works deemed essential to constructing said facility. Clearly & brazenly contrary to State Law.
  3. 5. It would appear that the NRWMF-T has failed to investigate nor even consider any implications arising from the current prime facie unlawful nature of their actions. Numerous sham ‘community consultation’ medleys; Taskforce presence in the field, & radiopharma promotions. Myriad ANSTO propaganda tours of Lucas Heights; French des visiteurs; community grants; ORIMA & AECOM contracts, & etc.. costing tens of millions. All done without first establishing any legal foundation.

Legally; fiscally; morally, & administratively negligent

FEDERAL LAW “Commonwealth Legislative Powers”

The Constitution confers the power to make laws on the Commonwealth Parliament. However, the power of the Commonwealth Parliament to make laws is limited to particular subjects. Most of these subjects are listed in sections 51 and 52. They include defence; external affairs; interstate and international trade; taxation; foreign, trading and financial corporations; marriage and divorce; immigration; bankruptcy; and interstate industrial conciliation and arbitration.” 6

  1. Amongst other dubious claims, Minister Canavan would have us believe that Federal Legislation allows him to run roughshod over State Law. But does the Emperor actually wear any clothes?
  2. 7. The previous South Australian Premier Jay Weatherill in 30 January 2018: “ Asked if the state government would pursue a High Court case against the Turnbull government if a national facility were approved in South Australia, Mr Weatherill said: “We would have to explore our options to see what steps can be taken.” “ 7 .
  3. 8. One of those steps would be to query whether Federal Parliament had Constitutional Authority to impose radioactive waste upon a State which had specific laws prohibiting such. Section 51 of the Australian Constitution describes the various Powers of the Federal Parliament, & there are 39 such capacities – none of which relate to things radioactive8 : whilst Section 118 obligates the Commonwealth to recognise & respect the public Acts of the States.
  4. To make things perfectly clear, included as Appendix 1 is the whole Section 51 of the Australian Constitution: we challenge anyone to demonstrate how Canberra can legally impose Commonwealth owned radioactive waste upon any State whose Legislation prohibits such – S.51. (xxvi) actually says that Federal Parliament needs to respect State Legislation. Prime facie there is no legal base for the Commonwealth to enforce State acceptance of radioactive waste.
  5. 10. The knowledge that the Feds don’t have Constitutional Power to dump radioactive waste upon the States is not rocket science & is not a new revelation.
  6. In fact back in the 1950s, when the expansion of the nuclear fission enterprise was seen as rapidly developing technology which Australia should embrace; Canberra took steps toward Constitutional change.
  7. 11. In 1956 Prime Minister Menzies sought to legitimise nationwide Commonwealth regulation of all things nuclear through the establishment of a Joint Parliamentary Committee on Constitutional Review: “The growth of nuclear physics, making possible the application of nuclear energy for practical purposes, is a phenomenon of the present century and alone this would explain the absence of any reference to it in the Commonwealth
  8. Constitution. ….. developments in the use of nuclear energy …. will inevitably …. reveal serious deficiencies in Commonwealth legal power …..“ 9 12. In the Committee’s November 1959 Final Report it categorically stated: “… the totality of constitutional power is insufficient to regulate and promote … the economic development of nuclear energy for all purposes. The power to regulate the use of nuclear energy for industrial or developmental purposes is almost entirely a matter for the States.“ 10
  9. 13. However the “… advice of the Joint Committee on Constitutional Review to amend the Australian Constitution to facilitate the development of a national nuclear industry was not taken up by the Menzies Government, or any subsequent federal administration.“.11
  10. 14. That path to Constitutional amendment failed to progress to a National Referendum because instead of going the whole hog, the Govt of the day apparently assumed it had all the legitimacy it needed thru S.51(vi) ‘Defence of the Realm’ powers12
  11. . 15. Hence the deficit of Commonwealth Power regarding civil & industrial radioactive waste facilities continues to this day. The Minister claims a need for this dump is generated by civilian radioisotope production & not from military use – therefore it cannot be legitimised under auspices of the S.51(vi) Defence umbrella.
  12. 16. The National Radioactive Waste Management Act [NRWMA 2012]13 came into effect on the 4th of April 2012. The objects of the Act are to safely & securely select establish & operate a facility for Commonwealth radioactive waste upon voluntarily nominated land. That Act does not signify ‘Defence’ at all, but relates to ‘….. controlled material within the meaning of the Australian Radiation Protection and Nuclear Safety Act 1998 that is of domestic origin; ….” 14: which “.. means any natural or artificial material, whether in solid or liquid form, or in the form of a gas or vapour, which emits ionizing radiation spontaneously. “ 15
  13. 17. Minister Canavan does not rely upon Constitutional Defence Powers to assert Federal dominance over the South Australian NWSF(P) 2000 Act: instead The Minister depends upon the NRWMA 2012 Part3 Section 11 ‘Authority to conduct activities’ scaffolded by S.12 ‘Application of State and Territory Laws’
  14. 18. However the Australian Constitution S.52(1) only allows Federal authority “…. over places acquired by the Commonwealth for public purposes “ – voluntarily nominated sites are by definition un-acquired.So any & all actions instigated by the Commonwealth upon the voluntarily nominated sites prior to acquisition are rendered unlawful.
  15. 19. Whilst also, as previously explained, the Australian Constitution S.51(xxv) AND S.118 both prohibit the Federal parliament from over-riding State Law. If the Commonwealth does not have Constitutional Power to over-ride State Laws & foist radioactive waste upon such; then likewise S.51(xxxi) denies lawful ability to acquire property in order to establish any site facilities.

Section 12 of the National Radioactive Waste Management Act 2012 is unConstitutional; whilst Section 11 can only be Constitutional AFTER a site has been acquired by the Commonwealth – an acquisition unsupported by any Constitutional authority. =============================================

1 Scarce, K. p107, SA_Govt, Nuclear Fuel Cycle Royal Commission – Final Report, May 2016

https://s3-ap-southeast-2.amazonaws.com/assets.yoursay.sa.gov.au/production/2017/11/09/03/09/17/3923630b-087f-424b-a039- ac6c12d33211/NFCRC_Final_Report_Web.pdf 2 NWS(P) Act 2000, Parliament of South Australia. http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/sa/consol_act/nwsfa2000430/

3 Ibid

4 Marshall, S., 15th September 2016 “Nuclear Industry- Our Position” https://www.stevenmarshall.com.au/tags/infrastructure_policy? page=2 NB original whole text has been taken off-line since the 2018 State Election & Marshall now appears to be pro-dump.

5 p11, Conservation Council of S Aust, “SA Election Policy Backgrounder” 03 March 2018https://drive.google.com/file/d/1u_J9W1uxOTVXtQWuIpr8REOXGT68IDkX/view viewed 20/03/18

6 Federal Register of Legislation,’The Constitution’ – Overview, Commonwealth Legislative Powershttps://www.legislation.gov.au/Details/C2005Q00193

7 Owen M., 30 Jan 2018 in ‘The Australian’ https://www.theaustralian.com.au/national-affairs/state-politics/jay-weatherill- changes-mind-on-nuclear-dump-ahead-of-election/news-story/a11667e1cfcb443812ef0052bfc6fbef

8 PoA, 09 July 1900, ‘Commonwealth Constitution Section 51’ https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/~/link.aspx? _id=AFF6CA564BC3465AA325E73053DED4AA&_z=z viewed 10/03/2018

9 PoA, pp50 – 01 October 1958, para 117-118 ‘Report from the Joint Committee on Constitutional Review’https://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees? url=reports/1958/1958_pp50.pdf

10 PoA, pp108 – 26 November 1959, para 548 ‘Second Report from the Joint Committee on Constitutional Review’ https://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_committees? url=reports/1959/1959_pp108.pdf

11 Yeeles, pp18-20, 19 May 2015 http://nuclearrc.sa.gov.au//app/uploads/2016/03/Richard-Yeeles-19-05-2015.pdf

12 Op cit – PoA pp108 para 547

13 Federal Register of Legislation, Commonwealth Acts April 2012 https://www.legislation.gov.au/Details/C2012A00029

14 Ibid 4 Definitions

15 Federal Register of Legislation ARPANSA 1998 S.13 Definitions http://www8.austlii.edu.au/cgibin/viewdoc/au/legis/cth/consol_act/arpansa1998487/s13.html#definition 3

APPENDIX ONE – EXTRACT FROM THE AUSTRALIAN CONSTITUTION

  1. Legislative powers of the ParliamentThe Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:i trade and commerce with other countries, and among the States;

    ii taxation; but so as not to discriminate between States or parts of States;

    iii bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;

    iv borrowing money on the public credit of the Commonwealth;

    v postal, telegraphic, telephonic, and other like services;

    vi the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;

    vii lighthouses, lightships, beacons and buoys; viii astronomical and meteorological observations; ix quarantine; x fisheries in Australian waters beyond territorial limits;

    xi census and statistics;

    xii currency, coinage, and legal tender;

    xiii banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;

    xiv insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;

    xv weights and measures;

    xvi bills of exchange and promissory notes;

    xvii bankruptcy and insolvency;

    xviii copyrights, patents of inventions and designs, and trade marks;

    xix naturalization and aliens;

    xx foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;

    xxi marriage;

    xxii divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;

    xxiii invalid and old-age pensions;

    xxiiiA the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

    xxiv the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;

    xxv the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;

    xxvi the people of any race for whom it is deemed necessary to make special laws; xxvii immigration and emigration;

    xxviii the influx of criminals;

    xxix external affairs;

    xxx the relations of the Commonwealth with the islands of the Pacific;

    xxxi the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;

    xxxii the control of railways with respect to transport for the naval and military purposes of the Commonwealth;

    xxxiii the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;

    xxxiv railway construction and extension in any State with the consent of that State;

    xxxv conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;

    xxxvi matters in respect of which this Constitution makes provision until the Parliament otherwise provides;

    xxxvii matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;

    xxxviii the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;

    xxxix matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

    END APPENDIX ONE

 

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Legal cases could stymie the Australian government’s push to dump nuclear waste on rural South Australia

April 27, 2018

THE construction of a radioactive waste dump in South Australia could be stalled by court challenges unless local indigenous people are consulted properly, the Australian Human Rights Commission has warned, Peter Jean, The AdvertiserAPRIL 25, 2018 

THE construction of a radioactive waste dump in South Australia could be stalled by court challenges unless local indigenous people are consulted properly, the Australian Human Rights Commission has warned.

The commission has intervened in the debate over potential locations for the dump after some Aboriginal groups complained they were not being fully consulted.

The Federal Government said it was working closely with indigenous people as it considers two sites near Kimba and one at Hawker as possible homes for low and intermediate-level radioactive waste.

But in a submission to a Senate inquiry, the Human Rights Commission said it was concerned that Adnyamathanha indigenous people near Hawker were unhappy with the consultation process.

“This situation requires immediate attention if the consideration of the site at Wallerberdina Station is to continue,’’ the commission said.

The “overwhelming and clearly expressed support of the affected indigenous group” would be required for the facility to go ahead, according to the commission.

The federal Department of Industry, Innovation and Science told the inquiry that it was consulting indigenous people, and an Aboriginal cultural heritage assessment had been conducted at the Wallerberdina Station site near Hawker.

The department said it would continue to work closely with traditional land owners to “preserve, protect and minimise the impact on indigenous heritage”

Legal challenges resulted in earlier plans for a waste dump in the Northern Territory being abandoned in 2014.

Australian Christians activists face 7 years’ gaol for protest against secret USA spy base Pine Gap

November 25, 2017

An American Spy Base Hidden in Australia’s Outback, NYT   The trials — and the Australian government’s uncompromising prosecution of the protesters — has put a spotlight on a facility that the United States would prefer remain in the shadows.

— Margaret Pestorius arrived at court last week in her wedding dress, a bright orange-and-cream creation painted with doves, peace signs and suns with faces. “It’s the colors of Easter, so I always think of it as being a resurrection dress,” said Ms. Pestorius, a 53-year-old antiwar activist and devout Catholic, who on Friday was convicted of trespassing at a top-secret military base operated by the United States and hidden in the Australian outback.

The continued move by the nuclear lobby to have South Australia as a radioactive trash dump

May 13, 2017

By Annie McGovern. 23rd April 2017  (this is an extract from the Adelaide Forum held very recently, to discuss this question) “….ENDNOTE  These observations have been gleaned from a fairly
random search for relevant information which was also confined by the time available to process and present these findings. These are offered at this time as an additional body of information that may help fill some of the gaps in the thrust to force further nuclear energy production and waste disposal on the people of S. A.

Amongst the many recommendations of the Nuclear Fuel Cycle Royal Commission there were 3 major points which raise concerns regarding the possible imminent changes to Legislation in S.A. The Royal Commission has urged the State Government to fast-track these Legislative changes, even though there are no current viable plans for any nuclear industry developments in S.A. at this time.

  1. Modification of the State Waste Dump Prohibition Laws. This Legislation was almost immediately amended following presentation of the Royal Commission’s findings, to allow Government spending on proposals for the Waste Dumps. The further question of approval of nuclear waste dumps in S.A. was put to the Labour State Conference and became a stalemate to which no decision could be made. Progress of changes to Legislation on this proposal was interrupted.
  1. Legislation that would allow contracts of Uranium sales to be tied to obligations on S.A. taking back the resultant waste. The Royal Commission sees this possibility as an enhancement to capture sales of Uranium, despite there being no approval for waste disposal in S. A. at this time, and, the fact that no such facility would be capable of fulfilling the contract until well into the future. The Royal Commission appears to be determined to place the people of S.A. into an intractable situation where industry is forcing obligation through contractual arrangements. However, a caveat might be placed on such contracts that are not plausible…an explicit caveat and the risk is borne by the signing parties. A letter of advice is provided to the signatory and the Annual AGM of companies involved informed of this unethical business practice.
  2. Legislative changes to allow Nuclear Power production. Despite there being no overt plans for these developments within the foreseeable future, the Royal Commission is encouraging making changes now for future development. The absence of a ready nuclear waste disposal dump has historically been a constraint on Australia and the world in the development of greater Nuclear ambitions. Reports of illegal dumping and covert placement of radioactive waste abound both here and across the world. Reports of French waste being held at Lucas Heights and American wasteat Pine Gap are recent additions to these claims.Despite peoples’ efforts over many generations to call for and act on Peaceful Principles in our World, Environmental Sustainability and Productivity based on Need rather than Greed, capitalism and its theory of perpetual growth continues to drive forward in an overtly destructive manner.The continued focus on South Australia to perpetuate the nuclear travesty on our planet is acknowledged through this Forum and collectively we stand against this invasion. We walk with the Protectors of Country with Respect for Life.

Warren Mundine, Tony Abbott’s appointed top Aboriginal adviser plans to sue Fairfax media

July 17, 2014
Mundine-and-AbbottWarren Mundine planning to sue Fairfax http://www.theaustralian.com.au/national-affairs/policy/warren-mundine-planning-to-sue-fairfax/story-fn9hm1pm-1226987562386?nk=e4daf2d0c04499e73040ec23369e096b# THE AUSTRALIAN JULY 14, 2014 12:00AM 
Victoria Editor Melbourne
THE Prime Minister’s senior ­indigenous adviser, Warren Mundine, plans to sue Fairfax after he was accused of brokering a “highly questionable deal” that gave a mining company ­access to an Aboriginal sacred site in Western Australia.

“The allegations against me published in Fairfax Media last weekend are false,” Mr Mundine says in the statement to be ­released today.

Western Australia’s Lake Disappointment mining deal – doubts about legal advice given to aborigines

July 17, 2014

Legal advice questioned controversial mining deal: http://www.smh.com.au/national/legal-advice-questioned-controversial-mining-deal-20140715-ztbnd.html#ixzz37mgd7Zbq July 15, 2014 Richard Baker and Nick McKenzie More legal advice has emerged questioning the process that led to a controversial deal between a West Australian aboriginal corporation and a mining company.

Fairfax Media has obtained advice from a third in-house lawyer for the Western Desert Lands Aboriginal Corporation which cast doubt over the process that lead to a deal with Reward Minerals to mine a Martu sacred site in outback WA called Lake Disappointment.

At the weekend, Fairfax Media revealed how two other in-house lawyers for the Western Desert corporation wrote an explosive July, 2011 memo warning that a soon-to-be signed deal with Reward had “no validity”, in part because the corporation’s board and executives had, in their opinion, not acted in the best interests of the Martu people.

A 2009 email reveals that a separate in-house lawyer for the corporation also raised concerns about the Martu people not having given “proper informed consent” to an in-principle agreement signed with Reward to mine Lake Disappointment a year earlier.

In March, 2009, the Western Desert corporation’s then in-house lawyer, Christina Araujo, emailed acting chief executive Tony Wright to advise that she was not “prepared to state that I believe WDLAC has the informed consent of the common law holders” because it could put her practising certificate at risk.

“Tony, further to our conversation on the 6th of March, I am confirming in writing concerns I have in relation to the Reward negotiations,” Ms Araujo wrote. “Apart from my personal observations, I have also had discussions with a number of others who were also of the view that proper informed consent is or may be lacking.

“Going through the files, it appears Katherine Hill [another legal adviser], on numerous occasions provided advice on proper informed consent and it is noted in a file note dated 16/10/2007 that she spoke to Joe Procter and Clinton Wolf about her concern that people did not seem to understand there was a mining proposal over Lake Disappointment.

“It does not appear in the files that the matter was discussed in detail with the common law holders … it is an issue for WDLAC if we do not have informed consent for the Reward matter. Any agreement which may result may be invalid.”

Mr Procter was a consultant helping the Western Desert corporation negotiate the initial 2008 deal and Mr Wolf was then the corporation’s chief executive.

Ms Araujo’s March, 2009 email came at the same time the Native Title Tribunal heard Martu elders testify about the cultural significance of the Lake Disappointment site.

The tribunal was asked to rule on Reward’s proposal after relations between the mining company and the Western Desert corporation stalled in mid-2008 amid an argument over legal costs. In a historic ruling, the tribunal rejected Reward’s bid on the basis of Lake Disappointment’s cultural importance to the Martu people. It was the first time the tribunal had refused a mining company’s application.

But, as reported by Fairfax Media at the weekend, the Western Desert corporation altered it stance on the Reward proposal in 2011, despite strong doubts from another set of in-house lawyers about the negotiation process not being conducted in the best interests of the Martu people.

Ms Araujo’s successors as the Western Desert corporation’s in-house lawyers warned that the Reward negotiation process had in their opinion put the corporation in breach of most of its legal obligations as the trustee body for Martu people.

In a January, 2011 announcement to the Australian Stock Exchange, Reward revealed it had in late 2010 approached the Western Desert corporation to re-open talks over Lake Disappointment.

On April 1, 2011, Reward announced to the ASX: “Reward has appointed Azure Capital and its affiliate Indigenous Investment Management (IIM) as advisers to assist in discussions with the Martu traditional owners.”

Company documents show at the time of this announcement that IIM’s shareholders and directors included former Western Desert chief executive Mr Wolf, senior Azure Capital executives and Warren Mundine, who was last year appointed as the federal government’s top indigenous adviser.

Another shareholder at this time was the Western Desert corporation’s chief financial officer Mr Wright.

Mr Mundine has confirmed that he was not personally involved in the negotiations nor benefited from the deal.

Western Desert corporation chief executive Noel Whitehead and Mr Wolf said external legal advisers were engaged in 2011 to ensure the deal was done properly and fairly.

Reward this week rejected any inference its negotiations over Lake Disappointment were unfair. It said independent legal and financial advisers were involved and great care had been taken to treat the Martu people with respect.

Aboriginal Traditional Owners succeed in legal challenge- Maurice Blackburn statement

June 19, 2014

justiceMuckaty station nuclear waste dump will not go ahead: Aboriginal Traditional Owners succeed in legal challenge Maurice Blackburn statement, 19 June 2014 http://www.mauriceblackburn.com.au/about/media-centre/media-statements/2014/muckaty-station-nuclear-waste-dump-will-not-go-ahead-aboriginal-traditional-owners-succeed-in-legal-challenge/ Plans to build a nuclear waste dump on Aboriginal land at Muckaty Station near Tennant Creek will not go ahead after the Commonwealth agreed not to act upon the nomination of the site by the Northern Land Council (NLC).

Leading social justice law firm Maurice Blackburn has been acting for Traditional Owners opposed to the dump in a four-year legal fight that was two weeks into a Federal Court trial when it was resolved.
The parties plan to ask that Justice Anthony North of the Federal Court dismiss the proceedings, which were due to continue in Darwin next week. This settlement is without any admission of liability.
Elizabeth O’Shea, head of Maurice Blackburn’s social justice practice said:
“Aboriginal people at Muckaty have been fighting this plan for more than seven years and are overjoyed to have secured this outcome.
“We are thrilled to share in the relief and excitement our clients are feeling, knowing that their country will not be the site of the country’s first nuclear waste dump.”
The matter has been run by Maurice Blackburn on a pro bono basis.  Barristers including Ron Merkel QC and David Yarrow have also acted pro bono.
“Just like the class actions and other landmark cases brought by Maurice Blackburn, our pro bono cases provide access to justice and make a real difference in terms of public accountability”, Ms O’Shea said.
Lorna Fejo, a Traditional Owner said:
“I feel ecstatic. I feel free because it was a long struggle to protect my land. I feel really happy about this decision because my children, grandchildren and great grandchildren can go to Namerini safely. This is what Australia is: it is a free land and Traditional Owners must always be free to express what they want done on their land.
“My grandmother gave me that land in perfect condition and other lands to my two brothers, who are now deceased. It was our duty to protect that land and water because it was a gift from my grandmother to me. And now that I am 84 years old, and I have had to fight hard to protect this land for my grandchildren and great grandchildren, it is now a gift which I will be able to pass onto them in its perfect condition, like I had received it.”
LEGAL BACKGROUND
A fee simple estate in Muckaty Station was granted to the Muckaty Aboriginal Land Trust (MLT, a respondent to the proceeding) in 1999 following a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA). The MLT holds Muckaty Station on trust under the ALRA for the benefit of the traditional Aboriginal owners of Muckaty Station and of other Aboriginal persons entitled to enter upon or use the land in accordance with Aboriginal tradition.
The Northern Land Council (NLC, also a respondent) is a body established under ALRA to supervise and administer Aboriginal land trusts in respect of areas in the Northern Territory including Muckaty Station.  The NLC is responsible under ALRA for giving lawful directions to and acting on behalf of the MLT for the benefit of the traditional Aboriginal owners of and the Aboriginal people holding an interest in Muckaty Station.
In June 2007, the NLC purported to nominate a portion of Muckaty Station as a potential site for the management and storage of radioactive waste.
Traditional Owners alleged in the action that the NLC failed to take appropriate steps to ensure the traditional Aboriginal owners understood the nature and purpose of the nomination, and failed to obtain proper consent before nominating the site.
Legal proceedings against the Commonwealth and the NLC were commenced in June 2010. The Federal Court trial began on 2 June 2014.

Australia’s draconian Radioactive Waste Management Act may override Aboriginal legal case

June 14, 2014

The Commonwealth Radioactive Waste Management Act (2005) states that even if an Aboriginal community or group that might be affected by the proposed nomination has not been consulted and does not consent, the nomination can go ahead.

And even if Justice Anthony North rules that the NLC behaved improperly, the facility might still be built at Muckaty.


Nuclear waste dump may still go ahead https://au.news.yahoo.com/thewest/national/a/24233270/nuclear-waste-dump-may-still-go-ahead/
 NEDA VANOVACJune 13, 2014, The news is always a little old at the Tennant Creek newsagency.It takes a while for the papers to be transported to the town, 1000km south of Darwin and about 500km north of Alice Springs in the rocky, semi-arid Barkly tablelands.

At 283,648 square kilometres, the tablelands are one-fifth of the Northern Territory and bigger than New Zealand. However, even eight years after the battle over the proposed Muckaty waste dump began, this dispute is anything but old news. The Federal Court this week took evidence from locals in what many hope will be a long-awaited resolution to a situation that has split the town.

In 2006, a small patch of land on Muckaty Station, 120km north of Tennant Creek, was put forward by the Northern Land Council (NLC) to the Commonwealth government to become Australia’s national radioactive waste storage facility. The council had the permission of the Lauder family of the Ngapa clan, which it determined were the rightful owners of that spot.

However, seven clans lay claim to land within the 221,000ha station, and all have dreamings and songlines that overlap and intersect, meaning the court will have to untangle what it can to determine which group can claim to the roughly two square kilometres that would house the facility if it goes ahead.

The case is arguably the biggest of its kind since the Jabiluka mine blockades of the 1990s. (more…)

Court case report. Day 4 of Muckaty nuclear waste dump dispute

June 9, 2014
Court report Day 4- Commonwealth and NLC argue for dump even if Traditional Owners have not consented
Beyond Nuclear initiative By Padraic Gibson 6 June 14Dr Donoghue continued submissions for the Commonwealth for most of the morning session. He restated an argument that both the Northern Land Council and Commonwealth have used in the lead up to this trial during Directions Hearings; that the Commonwealth Radioactive Waste Management Act (2005) had been clearly designed to shut down legal avenues for Aboriginal people wanting challenge the nomination of their land for a waste “facility”. 
Dr Donoghue explained that the Commonwealth had been attempting to establish a remote “facility” since the 1980s in numerous locations. But consistent opposition, including successful litigation, had prevented them from doing so. With this in mind, the Howard Government went out of it’s way to ensure Traditional Aboriginal Owners were explicitly stripped of their rights in the 2005 Act. Dr Donoghue cited a number of legal avenues explicitly closed to anyone wanting to challenge a national radioactive waste dump, including the exclusion of procedural fairness and a clause allowing nominations on Aboriginal land to remain valid even if a Land Council had not complied with obligations under the Aboriginal Land Rights Act (NT) 1976.

If this argument is accepted by the court, the nomination of Muckaty as a nuclear waste dump will stand even if the Traditional Owners are found never to have consented to the nomination. Or, as Dr Donoghue put it, “the fact of consent being validly given is not legally relevant”.

This line of argument, not to mention the Radioactive Waste Management Act itself, demonstrates the extreme contempt in which the Commonwealth holds the rights of Aboriginal people.

Another attack on Land Rights contained in the Act also became clear in the course of the Commonwealth submissions. So far, arguments in court have focussed on whether the NLC followed proper process in nominating the particular site now earmarked for the waste dump. The quality of consultations with other Traditional Owners, said to hold responsibility for land on Muckaty that is required for transport of the radioactive materials, has also been discussed. But Dr Donoghue made it clear that if the nomination of the waste dump site is allowed to stand, Aboriginal owners of adjacent lands would lose any rights to stop developments on their land needed to facilitate the dump. The Act gives power to the Commonwealth to simply compulsorily acquire any further land that they need to allow the dump to operate…….

three scandals are undeniable. Firstly the Commonwealth held impoverished Aboriginal communities to ransom, withholding funding for essential services unless they accepted a nuclear waste dump. Secondly, as Dr Donoghue made clear yesterday, they did so using legislation which strips Aboriginal people of their actual rights to land. And thirdly, a major Aboriginal Land Council has, from the outset of this case, been hiding behind an argument which says a nuclear waste dump should proceed at Muckaty even if it is found that Traditional Owners do not consent. This is a sad indication of the extent to which Land Rights in Australia were seriously pushed back under the Howard Government. www.beyondnuclearinitiative.com/blog

Australian Federal Court hears of devious process to put nuclear waste dump on Aboriginal land

June 3, 2014

Nuclear waste dump on Aboriginal land invalid, court told The West Australian, 3 June 14. Sydney (AFP) – The earmarking of a remote Australian outback area as a nuclear waste dump was invalid because officials failed to contact all traditional Aboriginal landowners affected, a court heard Monday.Muckaty Station in the Northern Territory was nominated in early 2007 as a site to store low and intermediate radioactive waste under a deal negotiated with the Aboriginal Ngapa clan.

While Australia does not use nuclear power, it needs a site to store waste, including processed fuel rods from the country’s only nuclear reactor at Lucas Heights, on the outskirts of Sydney,…..Opponents have fought against the dump for years, with a trial starting in the Federal Court in Melbourne Monday alleging Muckaty’s nomination was invalid due to a failure of the government and the land council to obtain the consent of all Aboriginal owners.

“What we’re here to say is ‘no more’ and that this process was so legally flawed that it is invalid,” Ron Merkel, who is representing traditional owners, told the court.

“The opposition is in no small part based on a spiritual affiliation to the land and that radioactive waste will poison the land,” he said in comments cited by Australian Associated Press.

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The court was told the consent of all groups with a claim to the land was required for the facility to go ahead, but some Aboriginals whose country was affected have never had a chance to voice their concerns until now……..Speaking to reporters, Kylie Sambo, of the Warlmanpa people, said the idea of a waste facility on the land, which is in the centre of the country, was “poison”.

“We don’t want it to spoil our country because we love our land and we’ve been there for centuries,” she said. “My uncle once told me, ‘You may think you own the land, but in fact the land owns us’.”

The Australian Conservation Foundation said the case raised questions about the country’s management of long-lived radioactive waste.
“Australia has never has an independent assessment of how best to manage radioactive waste; now we urgently need one,” campaigner Dave Sweeney said.

The case is set to run for five weeks. https://au.news.yahoo.com/thewest/world/a/24084083/nuclear-waste-dump-on-aboriginal-land-invalid-court-told/