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Northern Territory

Jul 26, 2017

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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

Comments & corrections

Jul 26, 2017

5 comments

Mark Freeman writes: Re. “Dutton takes a casual 43 minutes to destroy two men’s lives” (yesterday). I usually have a lot of time for the considered opinions of Greg Barns. However his piece on the deportation saga of two serial criminals was rather wanting. Nowhere in the article does he explain how or why deportation was being applied for.

I’ve travelled extensively and have always considered myself a guest when in a foreign land. I can’t imagine claiming rights to remain should I be convicted of a crime. I’m regularly surprised that so many people are able to stay in Australia after many convictions. Having family responsibilities seems a poor reason to excuse proven bad character.

Perhaps these two men really were subjected to injustice, but I doubt it. Barns gave me no reason to think otherwise. I’m no fan of Dutton but it’s probable he made a good decision in this case.

Les Heimann writes:Australians are not mushrooms, and the danger of injustice and incompetence buried through secrecy becomes more apparent every moment.

Grand Minister Dutton and his minions are pitiless tyrants as well as liars if UNHCR officials are to be believed, and I have more trust in these people than in Dutton.

They deny natural justice according to our Federal Court, even if they rid us of undesirables; let us not allow an innocent to hang because of process deficiencies.

One would think that the Homeland Security umbrella is now a fading thought bubble. Impossible to be entrusted to the likes of Dutton.

Trust!

The trust barrel is empty now, Prime Minister; Australians hear that hollow ringing sound devoid of substance and full of untruth.

How long before you allow your Grand Minister to spend more time with his family?

Crikey Worm

Jul 26, 2017

5 comments

MAMMA MIA! HOW CAN THEY RESIST THAT HEADLINE?

Media diversity is on full display today as most of News Corp papers (the Herald Sun and Hobart Mercury appear to have refrained) apparently could not think of a different headline for the news that Turnbull government minister for resources and the biggest Adani backer in government Matt Canavan has stood aside from the ministry. Canavan becomes the third senator in two weeks to fall foul of section 44 of the constitution, but he is pleading ignorance because his mother applied for Italian citizenship on his behalf in 2006, and he says he had no idea about it. Blaming his mum puts him in the same basket as Shane Warne, but it’s very un-Italian.

Unlike Larissa Waters and Scott Ludlam, Canavan is not resigning from the Senate, however, signalling that the Senate will take the matter to the High Court. The benefit of government is that Canavan had both the Attorney-General George Brandis and the Solicitor-General to consult on the matter and determine that there was a case to seek clarity from the High Court. The question will likely be around whether someone who is unaware of their dual citizenship is therefore ineligible. The case could have an impact on Waters and Ludlam, too, although both have already resigned and both were born in other countries, while Canavan was born in Australia.

There are still many questions as to how Canavan could not have known his own mother took out citizenship on his behalf when he was an adult, nor how it never came up when Canavan decided to run for politics and had to tick off that application form. We will no doubt get all the details when the High Court hears the case.

BERNARDI HITS THE BIG TIME

Australian Conservatives leader Cory Bernardi is boasting that since he split from the Liberals started his own party in late April, he has managed to raise more than $750,000 in donations, according to Fairfax. He claims that he has received donations from 18,500 people, with an average of $35 per donation. Normally we wouldn’t find out all this information until February next year, but Bernardi is clearly keen to boast about how much he’s getting from disaffected conservatives, and he says he is trying to be as transparent as he can be. It would be interesting to see whether those donations came from any big businesses or donors. Not that transparent, it seems.

Bernardi says he hasn’t received a donation from Gina Rinehart, and the largest declarable donation was $129,600 from Family First when the two parties merged.

ICAC CALLED ON MURRAY-DARLING

On Monday night, ABC’s Four Corners program alleged that NSW irrigation lobbyists were offered confidential government documents about the Murray-Darling basin plan to help them with their lobbying against the proposal.

In the wake of that report, the NSW Labor opposition will refer former water minister Kevin Humphries and the bureaucrat allegedly recorded making the offer — Gavin Hanlon — to the Independent Commission Against Corruption. NSW Primary Industries Minister Niall Blair has appointed an independent investigator into the matter.

READ ALL ABOUT IT

Renowned indigenous singer Dr G Yunupingu died overnight aged 46.

‘The last term we are bound’: Abbott’s words on marriage policy come back to haunt him.

Libs want to hunt leaker of claims of branch stacking for NSW plebiscites vote.

SA to send suspected crims to jail if they refuse to hand over their passwords.

WHAT’S ON TODAY

Melbourne: Cardinal George Pell will face court this morning for a filing hearing for charges of multiple historical sex offences.

Canberra: Former Queensland premier and now face of the Australian Banking Association Anna Bligh will be giving a speech on “Banks and trust, people and politics” at the National Press Club.

Sydney: Former Treasurer Peter Costello is expected to criticise the pay packets of banking execs in a speech.

THE COMMENTARIAT

Turnbull needs Matt Canavan to roll on — David Crowe (The Australian $): “Turnbull has acted prudently in accepting Canavan’s resignation from cabinet even as his former resources minister stays in the Senate. To be as safe as possible, the Prime Minister and others thought it would not be enough for Canavan to step aside pending the court ruling. The implication is that Canavan should be able to reclaim his place if he succeeds.”

Bill Shorten’s inequality pitch has rustled the jimmies of conservatives — Greg Jericho (Guardian Australia): “That data shows that the share of national income held by the richest 1% is indeed at the highest since the second world war – if you exclude the abnormal spike which occurred due the Korean war boom.”

The tragedy of the Murray-Darling river system is man-made (The Age): “The federal government, under pressure especially from the NSW government, has introduced policy changes that are threatening to kneecap the plan, beginning with capping the buyback of water for the environment.”

A right to protection from torture and suffering — Andrew Denton (The Australian $): “It is not about a ‘right to die’. It’s about a right to ask for help if you are dying and beyond meaningful medical relief.”

TODAY IN TRUMP

Donald Trump’s ongoing feud with his Attorney General Jeff Sessions has worsened, with the president tweeting that Sessions “has taken a VERY weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!” On television and in conversation with pundits, members of Trump’s communications team made clear that the president was greatly displeased with Sessions, who recused himself from the Justice Department’s Russia investigation, and whose job is now in the balance.

But Trump might have to wait to deliver the catch-phrase he made famous on The Apprentice. Sessions is well liked among much of Trump’s base, and far-right organs like Breitbart appear to be fighting for Sessions.

Trump also took time off from baiting his cabinet to regale American Boy Scouts with his achievements, using an aside in his remarks to remind them of the key states he won in the 2016 election. In the meantime, Republicans in the Senate are debating various plans for the future of America’s healthcare system.

THE WORLD

The Israeli security cabinet has voted to remove metal detectors installed at the entrance to the Aqsa mosque, the third holiest site for Muslims and one of the most hotly contested zones of the Israel-Palestine conflict. After an attack at the site by three Arab-Israeli citizens, the detectors were installed, provoking a mushrooming dispute that has threatened to spill into massive violence. — Reuters

The last killer whale to be born in captivity at SeaWorld has died, aged just three months old. The whale, known as Kyara, is thought to have succumbed to pneumonia. SeaWorld no longer breeds whales in captivity. — BBC

WHAT WE’RE READING

The true nature of John McCain’s heroism (The New Yorker): “By dismantling the last pillar of American contempt for Vietnam, McCain, in partnership with Kerry, led the way to the lifting of the embargo, the diplomatic recognition of Vietnam, and the true end of the war. The friendship that developed between the famously antiwar Kerry, whose protests had been despised by the prisoners in Hanoi, and the lionised patriot McCain became a hopeful example of American reconciliation.”

I don’t want to hear another fucking word about John McCain unless he dies or actually does something useful for once (Deadspin): “In 2008, the press mostly, finally fell out of love with McCain, in part because he was running against Barack Obama, but also because it became painfully clear that McCain was and always had been a mostly unremarkable party-line Republican, whose obvious discomfort with the far-right was not actually supported by the backbone necessary to challenge the far-right.”

The meaning of India’s ‘beef lynchings’ (The Atlantic): “The spectre of mob violence sparked by accusations that the victims slaughtered or smuggled cows or ate beef haunts India with morbid regularity. The phenomenon confirms, and perhaps even exceeds, the fears expressed by many critics of Prime Minister Narendra Modi and his Bharatiya Janata Party’s nationalist agenda, which they say is grounded not in bold economic reform, but in polarising social conflict between Hindus and Muslims.”

Unlocking the secrets behind the hummingbird’s frenzy (National Geographic): “With their rocketing movements and jewel-like plumage, hummingbirds seem like a hybrid of flesh, feather, and fireworks. The wings of some species flap up to a hundred times per second. Their heart rate can exceed a thousand beats per minute, and they gulp nectar with a near-invisible flick of the tongue. In gardens or at backyard feeders, they’re the definition of fleeting beauty.”

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