Community Affairs Friday 3 June 2011
CHAIR: We have a number of senators who wish to ask questions. Do any of you have an opening statement you want to make before we go into questions?
Mr Hill: No. I would just apologise-
CHAIR: That is okay. You cannot control the planes. I wish some of us could.
Senator LUDLAM: I want to go back over some of the evidence that the NLC has tendered to various Senate committees relating to the proposed national radioactive waste dump in the Northern Territory. The NLC submitted to the Senate environment committee a couple of years ago, and then I think referred that advice again to the Senate Standing Committee on Legal and Constitutional Affairs a year or two later. That anthropological advice given in relation to the proposed radioactive waste dump site in the Muckaty Land Trust area names members of the Ngapa branch or a group associated with the Lauder families as the only traditional owners of the site. Does the NLC maintain that this is the case?
Mr Hill: Yes, we do.
Senator LUDLAM: Does the NLC also maintain that members of the Ngapa branch or a group associated with the Lauder families have primary spiritual responsibility for the site and that members of other Ngapa groups are traditional owners for other land, as you outlined on page 6 of your submission to the Senate environment committee inquiry of 4 December 2008?
Mr Hill: Since that hearing and the information we have provided to you at that period we now have a court matter in progress-
Senator LUDLAM: You have a what, sorry?
Mr Hill: Court proceedings by an applicant. So, with due respect to the court process, it is inappropriate at this stage for NLC to make comments.
Senator LUDLAM: If you are referring to the matters before the Federal Court or at least in mediation at the moment, matters sub judice have not been held as a public interest immunity ground, so unfortunately that does not get you off the hook. There is longstanding Senate practice since the 1970s that holds you would still be required to answer the questions.
CHAIR: In terms of the process of the Senate estimates, the convention in the Senate is that we have to be very careful about what is being said, but just because it is actually under court proceedings does not mean it cannot be discussed in this hearing. What I have agreed with senators who are wishing to ask questions is that we will take it very clearly question by question to look at where we are going, but it is not a standard preclusion from the requirement to be involved in this process. I can provide you with the convention of the Senate that deals with that evidence.
Senator Arbib: I think Mr Hill accepts that he must answer questions, but at the same time he needs to be very careful given there is a court case in play. Also, I think we should move slowly through this to give Mr Hill time to make sure that he does not prejudice the case.
CHAIR: We are all being very careful.
Mr Hill: In answer to the senator's question, the answer is yes.
Senator LUDLAM: Could you explain for us why the NLC's own detailed anthropological report, which was prepared by three senior anthropologists and submitted to Justice Gray in the Muckaty land claim, going back a couple of years now, concluded clearly and unequivocally that all Ngapa land on Muckaty Station was held in common by the three Ngapa family groups, the Lauder, Anderson and Foster subgroups, and that no Ngapa land on Muckaty Station was owned exclusively by any of the three subgroups.
Mr Levy: Mr Hill suggested I respond to this. I take it you are referring to the anthropological report that was filed in the 1990s in the Muckaty Aboriginal land claim?
Senator LUDLAM: That is correct.
Mr Levy: The NLC does not accept your depiction of the effect of that report.
Senator LUDLAM: For what reason do you not accept it? It actually reads in black and white as far as I can read it.
Mr Levy: With due respect, you need to read it more closely. It does not read in black and white at all. If I could say further-and I imagine you will get to this-my learned friend Mr Hyde, who has not written to me about this, said in the media that he has read the transcript and he has recently unearthed from the National Archives information which was hitherto unknown, he says.
Senator LUDLAM: But you have known of that for years, right?
Mr Levy: Not only us; it was attached to his affidavit a month after the proceedings started.
Senator LUDLAM: Could I just constrain you to the-
CHAIR: Let Mr Levy finish and then you can go back to your questions.
Senator LUDLAM: He is asking questions-
Mr Levy: I am answering, if I could. The point I am trying to make is that the documents need to be read as a whole. It is a great and grave error to take evidence in land claims, which are complex proceedings, including anthropological reports, and pick out one bit or another bit and say, ‘I have found the holy grail. That is the answer.' It does not usually work like that. It needs to be looked at as a whole.
Senator LUDLAM: Is it the case that during that claim senior elders gave evidence at Kurrakurraja-I am probably pronouncing that very poorly-which is the location of the nominated site. But it was a sacred male initiation site which belonged to the Yapayapa people.
Mr Levy: Yes, evidence was given about that site, which is approximate to but not part of the nominated land. I do not intend to comment regarding that evidence, because the evidence that was given was restricted evidence.
Senator LUDLAM: I have a copy of it here. It cannot have been that restricted.
Mr Levy: You have a copy of the unrestricted evidence, but as I have said, if an assessment is to be made about restricted cultural matters together with other evidence that is given, it needs to be looked at as a whole. What you are asking is in the context of court proceedings, where those documents have been made available. If the court proceedings proceed, we will be before the court with appropriate orders. It is that arm of government which can make an assessment as to whether the NLC anthropologists made the right decision. This is not the right venue. I appreciate your comments, Madam Chair, but previously before Senate committees it has been recognised that where there are court proceedings, general questions are one thing; it is not feasible to ask us to put our case which will be put before the court if that happens before this committee, which is what you are suggesting.
Senator LUDLAM: In previous Senate committees there was not a court action afoot. That has happened more recently than both of the two hearings that I have referred to. Let us take a step back then, if we could.
Mr Levy: But with respect, it was said in previous committee hearings and in the report-maybe not from the Greens minority one-that if people wanted to challenge it the appropriate place was a court. The appropriate place is a court. The NLC is a Commonwealth entity. It will simply do what the court tells it to do, as the minister has said. It is not appropriate for this arm of government through this committee to subvert the court process, with respect. With respect, your questions are headed towards that, because you are asking for a response about evidence which cannot be before this committee because it is restricted-certainly not in your position. I have read it; I do not intend to talk about it. The NLC's anthropologists, more importantly, have read it and a range of other information and they have expressed a view. The view could be right or it could be wrong; that is a matter for the court.
Senator LUDLAM: Let us move on. Can you explain the process that led to the commissioning of the new anthropological advice that states that the Lauder family are the exclusive traditional owners of that area? I do not want to go to the matters or the details of that report because, of course, very few people have seen that, but just step through, if you will, the process that led to the commissioning of that study.
Mr Levy: I do not accept that it is new anthropological advice; that is the first point. In terms of the process, it was the same process the NLC always uses. For any development proposed in relation to Aboriginal land we get fresh anthropological advice. Often it simply says, 'You don't need to do anything. We know who the traditional owners are. We were there last year.' People are born, people die, changes happen. When it is a major development or a controversial development, the NLC does very detailed anthropological research. As my CEO has said, the NLC stands by that research, but it is in court. People are entitled to go to court; that is respected.
Senator LUDLAM: But it is normal practice for the NLC or for any other land council, for that matter, if a new development is proposed that you would generally open the book again on the anthropological issue?
Mr Levy: No, it is not a case of opening a book.
Mr Hill: Can I respond from a cultural perspective?
Senator LUDLAM: Yes.
Mr Hill: People are born, people die and people have certain responsibilities with regard to ownership of land, particularly with regard to the land-owning group. They also have cultural responsibility to the group and other affected groups. For example, the reason we go back and seek a fresh anthropological report is that somebody may have died where the father line and the mother line are without children, or a male. For example, the experience we are having now across the NLC, and I think right across Australia, is with regard to identification of traditional owners or native title claimants based on patrilineal rights to land, because ownership of land is through your father. That is why, from a cultural practice, we go back and identify who are the traditional owners and the relationship they have with the land and so forth. So, we work within the land rights act but, importantly, try to culturally match the relationship and ownership of land. That is why when people use the word ‘fresh' anthropological report, it is merely to acknowledge that there are deceased-there is that process of handing land down, ceremonial activities and so forth.
I was in the Gibb River in the VRD region early this week and I sat with three old fellas who do not have any voice in their families and they are very concerned about who is going to sing their songs. There are two complexes to the Land Rights Act. One is the administration responsibility, the separational powers; the other is the cultural match and identification of the appropriate people to speak and own land on the country. We have to acknowledge that and work within that framework.
Senator LUDLAM: Just to be clear, a new study was undertaken; is that not correct?
Mr Hill: It is normal process.
Senator LUDLAM: It is normal; okay.
Mr Levy: But it is not an open book. It starts with what was known.
Senator LUDLAM: Yes, of course. I am not assuming you are making it up from scratch. Can we just be clear? Who decided that that report was necessary? I know there would have been 15 or nearly 20 years.
Mr Levy: The report was required by the legislation. There had to be information given to satisfy the Commonwealth minister.
Senator LUDLAM: The land commissioner's report was not sufficient?
Mr Levy: The NLC was required by the legislation to prepare a report regarding that specific area of land to satisfy the then minister. The ANAO has commented about this. It said, ‘You are doing the right thing.' Even though you know who the traditional owners are, for example, in a particular area, nonetheless the form is filled out and the anthropology branch formally ticks off. It is a procedural thing often, but nonetheless we always do it. The auditors tell us to, so we do.
Senator LUDLAM: In this instance, was that initiated at the point where the site had been nominated and brought forward? I am just trying to work out where in the chain of events that new study was initiated, even if you could just give us a date.
Mr Levy: If I recall correctly-and I think some of the dates are before previous Senate committees-the government scientists came to the NLC full council in, I think, October 2005. I think the then NLC chairman had a meeting with some members of the Muckaty area later that year. The following year the government scientists went down to Muckaty Station with people that we knew were from that area. There was a visit to various potential locations. When it became clear that a nomination may be possible, it was formalised. I do not precisely know when. I cannot recall at the moment precisely when, but it was early in the process-
Senator LUDLAM: Late enough to know exactly what the area of land was?
Mr Levy: That is right, but it must be remembered that the nominated site is next door to the haulage road from the manganese mine to the east. We had very recently done what we call an LIR, a land interest registrar, a fresh anthropological search based on the previous work only a few years before for the land directly proximate to that road, including the nominated site.
Senator LUDLAM: You said you do not have the precise date on you, but could you undertake to take that on notice and provide us with that.
Mr Levy: Sure.
Senator LUDLAM: Were there requests or suggestions from the department still back in that general time regarding potential sites, that there be access to roads, or were you trying to work out the cause and effect, whether the department came and outlined criteria that would be needed-for example, transport corridors-or were you approached by the Lauders who identified an area that they wanted to nominate?
Mr Levy: We were approached by the traditional owners to ascertain whether the government scientists thought that some land might be suitable to look at. I am not sure when we knew, but at some stage we knew-and I guess we knew before they came to us-that if something is close to a road or some infrastructure it makes the whole exercise cheaper. However, our understanding of the inception from the government scientists was that they did not rule out a site which required a great deal of road construction to get to. I guess that if they had a number of options they would go for the cheaper ones if other things were equal, but they did not rule out large road construction. You would need to ask them, I guess, but that is my recollection.
Senator LUDLAM: Thank you. Is Amy Lauder still a member of the NLC full council?
Mr Hill: Yes.
Senator LUDLAM: Is her husband-I think his name is Jeff Dixon-still on the NLC executive?
Mr Hill: He was nominated by the full council as the executive member for the Borroloola-Barkly region.
Senator LUDLAM: So, that is a yes. He is still on the executive.
Mr Hill: Yes.
Senator LUDLAM: Has the NLC been approached by traditional owners in your region to nominate another site for a radioactive waste dump?
Mr Levy: Once the Labor government came to power, as you would know, they said they were going to repeal the legislation. No-one has approached us. However, prior to the nomination-and I think I have said this to a previous committee-after the NLC executive visited the Lucas Heights reactor in February or March 2006, there were a range of low-level, if you like-some were a higher level than that-expressions of interest from throughout the NLC's region, but they never went further because the government indicated to us that, of those potential putative locations, the one they thought was the most worth looking at was the Muckaty Station area.
Senator LUDLAM: That one went forward.
Mr Levy: One of those was, as you would know, in north-east Arnhem Land. It was publicised.
Senator LUDLAM: Yes. But nothing since the 2007 election?
Mr Levy: No.
Senator LUDLAM: Formal or informal, high level or low?
Mr Levy: If anyone approached us to say they wanted to make a nomination, we would tell them that the government is not proposing to proceed with any nomination under the current act until it is amended.
Senator LUDLAM: That is hypothetical. Has anybody approached you since 2007?
Mr Levy: No-one has approached us to nominate land since the nomination in 2007.
Senator LUDLAM: That is okay; thank you. That one was a yes or a no. So, you are not pursuing alternative sites, either on the Muckaty Land Trust land or anywhere else?
Mr Levy: No, we are not pursuing anything, but if the legislation goes through then, no doubt, there will be consideration of the Muckaty site. It will be open for people anywhere in the Northern Territory to further pursue it or not, as the case may be. If they do, the NLC will perform its statutory functions; if they do not, the NLC will perform its statutory functions by doing nothing.
Senator LUDLAM: Mr Levy or Mr Hill, have either of you visited Tennant Creek or the parts surrounding that area to discuss the waste dump with traditional owners?
Mr Levy: I have, back at the time of the nomination.
Senator LUDLAM: Anything else?
Mr Hill: I have been in the region with regard to other Northern Land Council activities, not necessarily specifically regarding the waste dump. We have had consultations down there with traditional owners regarding a number of other activities-the optic fibre, the membership of their corporations and so forth-so we do have a presence in that region. We are down there talking to traditional owners and others associated with the Muckaty Land Trust regarding native title matters and claims, so we do have a presence in that region and there is always an opportunity for traditional owners to talk to and consult with my officers regarding all matters which we are to do under the Aboriginal land rights act.
Senator LUDLAM: What would people have to do to get a meeting with you specifically on the issue of Muckaty, because I understand you have been invited to speak about that specific issue a number of times?
Mr Hill: With regard to the specific issues, I believe that we have done what we are required to do under the Aboriginal land rights act and consulted the relevant people. I believe the forum you are referring to in Tennant Creek is a forum which I believe the legislators or the government of the day needs to hold rather than the land council, because it is their legislation and policy which we need to undertake. The forum you are referring to in Tennant Creek is a forum which we do not necessarily believe is our responsibility. It is the government and the relevant minister who need to address some of the concerns people have. It is outside our jurisdiction.
Senator LUDLAM: So, if people who the NLC does not necessarily believe have exclusive traditional ownership of the site in question ask the NLC, you, Mr Levy or any of your representatives for a meeting, you refer them to the federal government? You do not believe that that is part of your role?
Mr Hill: Again, we do not believe we have the statutory responsibility for the information they are seeking. We have undertaken our duty with regard to the issue of Muckaty. On your earlier questions regarding the concerns people have about the social aspects and so forth, that lies with the Northern Territory government, particularly regarding the management aspect of some of the social concerns people have.
Senator LUDLAM: But don't you have the statutory obligations to represent the interests of all TOs within the NLC region?
Mr Hill: Yes, with regard to their country, not other people's country, we are to seek the informed consent of traditional owners and consult other affected groups-that is, consult with, not seek instructions from them or seek their informed consent. Again, on the forums you have proposed, which we did not attend to, we do not believe that we had the answers to what people were seeking and that they invited the relevant minister and department to provide those answers.
Senator LUDLAM: The people specifically want to know why the land was nominated, but I have run the clock down to some degree, so I will leave it there.
Mr Levy: I do not know of any such request that you are referring to. I thought you were referring to environmental issues. Every letter and email matter, to my knowledge, that has come to the NLC since this process commenced has been answered formally.
Senator LUDLAM: To your knowledge. Could you take that on notice for us and correct the record if that turns out not to be the case.
Mr Levy: I am happy to tell you now, I do not know of any such thing.
Senator LUDLAM: I am not asking whether you know of any. I am asking whether there might have been some that you did not know of.
Mr Levy: I can assure you right now that there is not.
Senator LUDLAM: Nobody has contacted the NLC in three years to try to get a hearing with either you or Mr Hill on the issue of Muckaty Station?
Mr Levy: I do not know of any such contact by any person.
Mr Hill: Can I just clarify? You asked and I responded with regard to myself. The NLC is the council; we are merely the bureaucracy of the land council. It sounded as though yourquestion was more directed to Mr Levy, not the NLC, if I can put it in context.
Senator LUDLAM: No. I am not referring to correspondence directed at Mr Levy. I am not sure why people would write to Mr Levy. But to you, Mr Hill, or to the Northern Land Council in general, has anybody sought meetings, consultations and explanation about NLC-
Mr Hill: To my knowledge, yes.
Senator LUDLAM: People have?
Mr Hill: People have invited me down.
Senator LUDLAM: So, is it not part of your obligation to meet with them?
Mr Hill: It is my obligation to meet with people who are very clear-firstly, I find out what information they were seeking. I will say this again: I do not have the statutory responsibility to respond to some of the questions in which they were asking about the product, being the material. On the discussion: I am happy to have discussions with people, particularly traditional owners, about their land, but not to give other privileged information about other traditional land groups to non-traditional owners who do not have ownership or are part of that process of seeking informed consent, if I can put it that way.
Senator LUDLAM: What you say is an aside in answer to one of your earlier answers that the minister has not taken the time to meet any of those people either, so they have just had nearly five years of this. I will leave it there, Chair.