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The traditional Aboriginal owners of Muckaty Station in the Northern Territory have launched legal action in the Federal Court in Darwin seeking to reopen one of the most contentious pieces of environmental litigation in recent Australian history.

In June 2007, the Northern Land Council, the Commonwealth statutory authority responsible for the administration of Aboriginal land in the top half of the Northern Territory, nominated remote Muckaty Station as a potential site for the management and storage of Australia’s radioactive waste on behalf of the Ngapa clan of traditional Aboriginal owners. Then-science minister Julie Bishop approved the nomination in September 2007.

Three years later, a group of dissident Aboriginal people from other clan groups, with backing from powerful environmental and legal supporters, initiated an action in the Federal Court, alleging that the Northern Land Council had failed to ensure the traditional Aboriginal owners understood the nature and purpose of the nomination and had failed to obtain their proper consent before nominating the site.

The dissidents launched legal action in June 2010 and, in early June 2014, hearings of their claim were held before Justice Anthony North in the Federal Court in Melbourne, on-site at Muckaty Station and at Tennant Creek. In mid-June 2014 — in a move that surprised many at the time — the Northern Land Council and the second respondent, the Commonwealth government, settled the dissidents’ case.

The dissidents and their supporters claimed the settlement as a victory for their cause, and Lizzie O’Shea, their solicitor and head of the social justice practice at Maurice “We fight for fair” Blackburn, told The Sydney Morning Herald that:

“Every step of the process was opposed by people on the ground, and that may be one reason why they’ve decided to no longer rely on litigation. Aboriginal people at Muckaty have been fighting this plan for more than seven years and are overjoyed to have secured this outcome.”

In a statement read to media in Darwin on June 19, 2014, Northern Land Council chief executive Joe Morrison said that:

“Aboriginal people should be able to arrive at those decisions without influence from outside groups who have their own agendas … As I’ve said the NLC stands by the processes which led to the nomination of the site at Muckaty. Rather than there being some sort of conspiracy, as has been bandied around, there are quite reasonable explanations and justifications for why things were done as they were in the lead up to the nomination. The allegations made against the NLC as to fraudulent and dishonest conduct cannot be substantiated on the evidence, and I reject them utterly. The statements that were made about the NLC, its processes and senior staff can be broadly characterised as scandalous and have no factual basis. The evidence of the applicants’ own witnesses is that the NLC did its job properly and consulted widely with the right groups and obtained the consent of the traditional owners. This came out clearly in the Federal Court hearing at Tennant Creek last week.”

Much of which suggests that the Northern Land Council might have settled the case when it knew it was onto a winner. Consultations for a second site nomination on Ngapa clan lands commenced in 2012.

Last month — three years to the day since North confirmed the settlement between the Northern Land Council, the Commonwealth and the dissident Aboriginal community members — Ngapa clan members launched legal action against the Northern Land Council. That action, Jason Bill & Ors v Northern Land Council, was filed in the Darwin registry of the Federal Court on June 20, 2017.

The Northern Myth has seen a copy of the statement of claim and the accompanying originating application. In the originating application, the Ngapa clan representatives make two broad claims against the Northern Land Council.

Firstly, that by settling the original case, the Northern Land Council breached provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and breached duties it had to them at common law, such as to cause “financial loss in the sum of $12 million” to them and other interested Aboriginal people supportive of the nomination. Secondly, that the same duties to the Ngapa clan were breached by the Northern Land Council failing to complete consultations on the second proposed nomination, in that instance causing “financial loss in the sum of $17 million” to them and others.

Further claims allege that North, further to a deed of settlement between the parties, did not have the jurisdiction to make the court orders on June 20, 2014 that dismissed the case.

Last month, the Australian National Audit Office released a report on the Northern Land Council’s governance and, while recording that the council had committed to implementing “a wide-ranging reform agenda covering almost all aspects of the governance and administration of the council”, the ANAO noted that:

“In March 2013, the report of an external review of the NLC’s governance framework identified a ‘fundamental breakdown in the governance framework at the NLC’, resulting in serious failings in almost all aspects of the council’s administration. On 27 February 2015, the NLC’s Chief Executive Officer and senior officials appeared before the Senate Finance and Public Administration Committee, following the Australian National Audit Office’s financial statements audits that found weaknesses in the NLC’s financial management and reporting. The committee was highly critical of the NLC’s progress in improving internal management systems.”

The Northern Myth understands that the court papers were served on the Northern Land Council yesterday. In a piece by Amos Aikman in The Australian today the first applicant Jason Bill, responding to the news that the court documents had been served on the Northern Land Council, told Aikman that it was:

“Great news: that’s the thing that my family have been waiting for … [A]ll we were asking for is a low-level waste dump … we’ve looked into it and heard about it from the professionals, and it’s not going to damage the environment … We need that money so we can buy cattle, build houses and really get our station going.”

Jason Bill & Ors v Northern Land Council is scheduled for a case management hearing before Justice Richard White in the Federal Court in Darwin on August 14, 2017.

*This article was originally published at Crikey blog The Northern Myth

Peter Fray

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