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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the National Radioactive Waste Management Act
2012 to establish the National Radioactive Waste Management Facility
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Portfolio
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Industry, Science, Energy and Resources
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Introduced
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House of Representatives, 13 February 2020
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Rights
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Culture; self-determination; equality and non-discrimination
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Status
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Concluded
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2.153 The committee requested a response from the minister in relation to the instrument in Report 3 of 2020.[2]
2.154 The bill seeks to amend the National Radioactive Waste Management Act 2012 (the Act) to establish a single, purpose built National Radioactive Waste Management Facility (Facility) for the disposal of radioactive nuclear waste. The bill would specify the site on which the Facility would be established and operated, which is named in the bill as Napandee, located in the district council of Kimba in South Australia (the site).
2.155 The specification of the site as one where nuclear waste will be stored appears to engage and may limit the rights to culture and self-determination. The statement of compatibility states that native title rights have been extinguished at the specified site, however, 'Aboriginal heritage, either tangible or intangible, may still be present'.[3]
2.156 The right to culture provides that people have the right to benefit from and take part in cultural life.[4] Individuals belonging to minority groups have additional protections to enjoy their own culture, religion and language.[5] The right for minority groups has both an individual and a group dimension: while the right is conferred on individuals, it must be exercised within the minority group. In the context of indigenous peoples, the right to culture includes the right for indigenous people to use land resources, including through traditional activities such as hunting and fishing, and to live on their traditional lands. The state is prohibited from denying individuals the right to enjoy their culture, and may be required to take positive steps to protect the identity of a minority and the rights of its members to enjoy and develop their culture.[6] A limitation on the right to culture will be permissible where it pursues a legitimate objective, is rationally connected to this objective and is a proportionate means of achieving this objective.
2.157 The right to self-determination, which is a right of 'peoples' rather than individuals, includes the right of peoples to freely determine their political status and to freely pursue their economic, social and cultural development.[7] This includes the right of groups within a country, such as those with a common racial or cultural identity (in the Australian context, particularly Indigenous people), to have a level of internal self-determination.
2.158 In addition, in determining whether any limits on the rights to culture and self-determination are permissible under international human rights law, it is necessary to consider the extent to which relevant groups have been consulted. As part of its obligations in relation to the rights to culture and self-determination, Australia has an obligation to consult with Indigenous peoples in relation to actions which may affect them.[8] This should protect the right of Indigenous peoples to 'influence the outcome of decision-making processes affecting them, which is 'not a mere right to be involved in such processes or merely to have their views heard'.[9] The principles contained in the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) are also relevant. The Declaration provides context as to how human rights standards under international law apply to the particular situation of indigenous peoples. The Declaration affirms the right of indigenous peoples to self-determination[10] and to have their culture respected, including the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, and have access in privacy to their religious and cultural sites.[11] While the Declaration is not included in the definition of 'human rights' under the Human Rights (Parliamentary Scrutiny) Act 2011, it provides clarification as to how human rights standards under international law, including under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Cultural and Social Rights, apply to the particular situation of indigenous peoples.[12]
2.159 The initial analysis stated that further information was required in order to assess the engagement and compatibility of the measure with the rights to culture and self-determination, in particular:
• what percentage of those who were eligible to vote in the community ballot (which asked whether people supported the proposed facility being located in the community of Kimba, were Indigenous);
• what other consultation was held specifically with relevant Indigenous groups and what was the level of support for the site specification; and
• once the radioactive waste facility is operational, if culturally significant findings are made on the site in future, how the Environment Protection and Biodiversity Conservation Act 1999 would operate to ensure appropriate protection for cultural heritage.
2.160 The full initial human rights analysis is set out at Report 3 of 2020.
2.161 The committee noted the legal advice that as the site may have cultural significance for First Nations people the bill engages and may limit the right to culture and self-determination. In order to assess whether the bill engages and limits these rights the committee sought the minister's advice as to the matters set out at paragraph [2.159].
2.162 The minister advised:
What percentage of those who were eligible to vote in the community ballot were Indigenous
A range of inputs were considered to determine community sentiment at the site, including the District Council of Kimba Ballot, ballots of Traditional Owner groups' members, surveys of businesses and neighbours, a national submissions process, petitions and ministerial correspondence.
The District Council of Kimba Ballot was undertaken by the local council, in the local government area surrounding the Napandee site, following procedures consistent with standard council elections under the Local Government (Elections) Act 1999 (SA) (LGE Act). Eligibility to vote in the ballot was based on the qualification criteria set out in section 14 of the LGE Act. A person's Indigenous status was not a determining factor in the ballot, and it is not possible to determine what percentage of eligible voters may have been Indigenous.
The ballot was well-advertised through public meetings, news print advertising, social media posts and mail outs, and all members of the local community were encouraged to check their availability and register if they were not currently listed on the voters roll. The District Council of Kimba also encouraged broad participation. Specifically, in a media statement:
If you aren't eligible to be on the House of Assembly roll but live in Kimba or own rateable property in the district, I encourage you to speak to Council staff to assess your eligibility to be included on the voters roll,", and "It's vital that every eligible member of our community who is eligible gets to have a vote so the Minister can get a comprehensive picture on the amount of support for the facility being located at one of the two sites that have been nominated in Kimba".
The Barngarla Determination area, which came into effect on 6 April 2018, covers about 44,500 square kilometres of the Eyre Peninsula and includes the cities of Port Lincoln and Whyalla. The Gawler Ranges determination area, which came into effect in December 2011, covers about 34,000 square kilometres in the Gawler Ranges area and Lake Gardiner National Park. While Traditional owners are an important stakeholder to the Facility development program, there is no native title on the land parcel and immediate surrounds of the Napandee site.
The Barngarla People nominated the Barngarla Determination Aboriginal Corporation (BDAC) as their Registered Native Title Body Corporate to speak on heritage matters within the boundaries of their native title determination, and have a membership list of approximately 209 individuals.
The Gawler Ranges Aboriginal Corporation (GRAC) was incorporated on 16 December 2011. GRAC have a membership list of approximately 456 individuals. The GRAC wrote to the department in 2 October 2019, advising that, in their view, the Barngarla People are culturally responsible for area covering the nominated sites in Kimba, and that it was not culturally appropriate for them to comment on the proposal.
The department offered financial support to both entities (along with other Traditional Owner groups surrounding the shortlisted site at Wallerberdina Station), to assist them in undertaking a ballot or survey of their members.
The BDAC completed a ballot of its members through a private third party company (Australian Election Company) in November 2019. Of its 209 members who were eligible to vote in the ballot, 87 responded (41.62 per cent), 4 votes were rejected at preliminary scrutiny, the remaining 83 votes responded 'No' (100 per cent) to the question "Do you support the proposed National Radioactive Waste Management Facility being located at one of the nominated sites in the community of Kimba?"
In addition, submissions from a number of Traditional Owner representative groups were received and considered. Previous submissions by Traditional Owner representative groups, to the 2018 Parliamentary inquiry into the site selection process, were also considered.
What other consultation was held specifically with relevant Indigenous groups and what was the level of support for the site specification
The department has sought to engage the Barngarla People throughout the site selection process. At the request of the BDAC, the department's engagement has primarily occurred through their legal representatives. The department has over 60 documented interactions with the BDAC or their legal representatives including:
• meetings with the BDAC board, to discuss the project and understand their views;
• information sharing requests, including requests to distribute information to their members or enable the department to make presentations to, and answer questions of their members;
• offers to conduct a cultural heritage assessment in collaboration with a working group of Barngarla knowledge holders - a preliminary desk-top assessment is available athttps://www.industry.gov.au/data-and-publications/aboriginal-heritage-desktop-assessment-report-kimba;
• offers of funding for BDAC to conduct a ballot to gauge its members views towards the National Radioactive Waste Management Facility (Facility); and
• offers of a funded trip for its board and interested members to visit the ANSTO's Lucas Heights facility to see how radioactive waste is currently managed.
In addition, in October 2019, prior to the Kimba community ballot, the department promoted specific information sessions for Barngarla and Gawler Ranges people, in Port Lincoln and Whyalla, where it is understood the majority of their members reside, to ensure convenience in accessing information and participating in the consultation process.
The Australian Government has also made available $3 million to support the economic and heritage development of the Barngarla people, to help ensure that they can maximise the benefits of the Facility development. The department has sought BDAC's participation in the development of an economic development plan for this purpose.
As noted above, the BDAC completed a ballot of its members through a private third party company (Australian Election Company) in November 2019. Of its 209 members who were eligible to vote in the ballot, 87 responded (41.62 per cent), 4 votes were rejected at preliminary scrutiny, the remaining 83 votes responded 'No' (100 per cent) to the question "Do you support the proposed National Radioactive Waste Management Facility being located at one of the nominated sites in the community of Kimba?" Submissions from BDAC have also indicated a lack of support for the Facility at Kimba.
Once the radioactive waste facility is operational, if culturally significant findings are made on the site in future, how the Environment Protection and Biodiversity Conservation Act 1999 would operate to ensure appropriate protection for cultural heritage
The National Radioactive Waste Management Act 2012 expressly provides that the Australian Radiation Protection and Nuclear Safety Act 1998; the Environment Protection and Biodiversity Conservation Act 1999 and the Nuclear Non-Proliferation (Safeguards) Act 1987 cannot be overridden for purposes relating to the preparation and development of the Facility site, and to the operation and decommissioning of the Facility.
Before its establishment, the Facility must receive regulatory approvals under the Environmental Protection and Biodiversity Conservation Act 1999 and the Australian Radiation Protection and Nuclear Safety Act 1998.
While there is no native title on the site and no registered heritage, the department, through its preliminary desktop study and engagement with BDAC and their legal representatives, is aware of the potential for Aboriginal cultural heritage to exist. The department will work with BDAC and the Department of Agriculture, Water and Environment to ensure that all relevant obligations under the Environmental Protection and Biodiversity Conservation Act 1999 are met in relation to all aspects, including the protection of any identified cultural heritage.
Further activities the department will undertake in order to appropriately identify and manage cultural heritage, and achieve regulatory approvals include:
• undertaking a detailed cultural heritage assessment with qualified archaeologists and anthropologists; and
• the creation of a heritage management plan to minimise and mitigate any potential impacts to heritage.
The department has sought, and will continue to seek the involvement of the BDAC in these processes.
2.163 In determining whether any limits on the rights to culture and self-determination are permissible it is necessary to consider the extent to which relevant groups, in this case Indigenous People, have been consulted. As part of its obligations in relation to respecting the right to self-determination, Australia has an obligation under customary international law to consult with Indigenous peoples in relation to actions which may affect them. The UN Human Rights Council has recently provided guidance on the right to be consulted, stating that the right to be consulted should be understood as a right of Indigenous peoples to 'influence the outcome of decision-making processes affecting them, not a mere right to be involved in such processes or merely to have their views heard'.[14]
2.164 The statement of compatibility had stated that the level of engagement and community support for the location of the Facility is evidenced by the outcome of the community ballot. However, the minister has advised it is not possible to determine what percentage of those eligible to vote in the community ballot were Indigenous. The minister advised that eligibility in the ballot was based on the qualification criteria set out in the Local Government (Elections) Act 1999 (South Australia). That Act provides that eligibility is, in essence, determined by residence in the local area or whether a person is a ratepayer. It would appear that holding native title in the area is not a ground for eligibility in this ballot.[15] As such, the ballot conducted by the Barngarla Determination Aboriginal Corporation (Barngarla Corporation) would appear to be more relevant to the question of consultation with Indigenous people. This ballot sought the views of members of the Barngarla People, who from the minister’s response appear to be those that are culturally responsible for the area covering the nominated site. The minister advised that 100 per cent of Barngarla respondents to this ballot were opposed to locating the radioactive waste management facility at the nominated site. The minister’s response states that additionally, various submissions were received and considered from other Traditional Owner representative groups, and that submissions from the Barngarla Corporation have also indicated a lack of support for the location of the Facility.
2.165 The minister also advised that the department sought to engage the Barngarla People throughout the site selection process, and have over 60 documented interactions with the Barngarla Corporation or their legal representatives. These include: meetings to discuss the project; offers to conduct a cultural heritage assessment; offers of funding for Barngarla Corporation to conduct a separate ballot of its members to gauge their views towards the site nomination; and offers of a funded trip for the Barngarla Corporation Board to visit the Lucas Heights facility to see how radioactive waste is currently managed.
2.166 As affirmed by the UN Human Rights Council, the nature of consultation with the Indigenous community should consist of a qualitative process of dialogue and negotiation, with consent as the objective.[16] In this context consultation is not satisfied with ‘a single moment or action but a process of dialogue and negotiation over the course of a project, from planning to implementation and follow-up’.[17] While inputs were requested and received from representative groups of the Indigenous community, separately and independently of the community ballot, nomination of the site seems to rest heavily on the local council ballot from which native title holders were excluded, which the minister uses as evidence of local community support.[18] In contrast, it would appear that the Indigenous group culturally responsible for the site was unanimously opposed to the site nomination.
2.167 Given the nature and extent of the consultation with affected Indigenous groups and the unanimous opposition of Indigenous groups to the nomination of the site, it appears that the right of indigenous peoples to influence the outcome of decision-making processes affecting them may not be sufficiently protected by this bill.
2.168 In relation to how cultural heritage would be adequately protected once the radioactive waste facility was established, the minister advised that a number of Acts, including the Environment Protection and Biodiversity Conservation Act 1999, cannot be overridden for purposes relating to the operation of the facility. The minister advised that although there is no native title on the site and no registered heritage, the department is aware of the potential of Aboriginal cultural heritage to exist and will work with Barngarla Corporation to ensure that all relevant obligations are met, including the protection of any identified cultural heritage. The minister advises that the department has sought, and will continue to seek, the involvement of Barngarla Corporation in these processes. The protection of any identified cultural heritage is an important safeguard to protecting the right to culture. However, in relation to any cultural and spiritual significance attaching to the land itself, it remains unclear how this would be protected once a radioactive waste facility is operational on the site. Further, it is unclear how Indigenous people will be able to access sites of cultural significance, should they be determined to exist.
2.169 In conclusion, noting the clear opposition of the Barngarla Peoples to the specification of Napandee as the site for the establishment of a radioactive waste facility, and the potential for the site to impact on Indigenous cultural heritage, the specification of this site may impermissibly limit the right to culture and self-determination.
2.170 The committee thanks the minister for this response. The committee notes that the bill would enable the establishment of a national radioactive waste management facility at a specified location in South Australia. The committee notes the minister’s advice that it is aware of the potential for Aboriginal cultural heritage to exist over the specified location.
2.171 The committee welcomes the minister’s advice that the department has sought and will continue to seek the involvement of the Barngarla Determination Aboriginal Corporation as a representative Indigenous group, in the identification and management of cultural heritage. However, the committee notes the legal advice that in determining whether any limits on the rights to culture and self-determination are permissible under international human rights law, it is necessary to consider the extent to which relevant groups have been consulted, which should consist of a qualitative process of dialogue and negotiation, with consent as the objective.
2.172 Noting the stated opposition of the Barngarla peoples to the specification of Napandee as the site for the establishment of a radioactive waste facility, and the potential for the site to impact on Indigenous cultural heritage, the committee considers there is a significant risk that the specification of this site will not fully protect the right to culture and self-determination.
2.173 The bill also provides that the regulations may prescribe additional land that is required to expand the specified site for the establishment and operation of the Facility, or the minister may make a notifiable instrument to specify additional land to provide all-weather access to the site.[19] It provides that if such land is prescribed, all rights and interests in the land are acquired by the Commonwealth or extinguished and freed and discharged from all other rights and interests.[20] This would appear to include the extinguishment of native title.
2.174 Before prescribing additional land the minister must be satisfied that consultation is undertaken, by inviting (through publication in a newspaper) each person with 'a right or interest in the land' to comment and taking such comments into account.[21] The bill provides that these consultation requirements are taken to be an exhaustive statement of the requirements of the natural justice hearing rule.[22]
2.175 The ability to compulsorily acquire additional land, which could lead to all rights and interests in that land being extinguished (including any native title), appears to engage and may limit the rights to culture, self-determination and equality and non-discrimination. The rights to culture and self-determination are set out above at paragraphs [2.156] to [2.158]. The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind, which encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[23] Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute.[24]
2.176 The United Nations Committee on the Elimination of Racial Discrimination (CERD Committee) has said that Australia's historically 'racially discriminatory land practices have endured as an acute impairment of the rights of Australia's indigenous communities' and that 'the land rights of indigenous peoples are unique and encompass a traditional and cultural identification of the indigenous peoples with their land that has been generally recognized'.[25] It has found that the extinguishment of native title raises concerns as to Australia's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination.[26] In 2017, the CERD Committee expressed concern 'about information that extractive and development projects are carried out on lands owned or traditionally owned by Indigenous Peoples without seeking their prior, free and informed consent' and recommended that Australia 'ensure that the principle of free, prior and informed consent is incorporated into the Native Title Act 1993 and in other legislation as appropriate, and fully implemented in practice'.[27]
2.177 The initial analysis stated that further information was required in order to assess the engagement and compatibility of the measure with the rights to culture, self-determination and equality and non-discrimination, in particular:
• whether the additional land for the expansion of the site (the boundaries of which are specified in the bill) currently has native title rights attaching;
• whether the bill would enable native title rights to be extinguished without the full, free and informed consent of native title holders, and if so, how the rights to culture, self-determination and equality and non-discrimination will be protected;
• whether the requirement to consult with anyone with a 'right or interest' in the land includes those who may have cultural ties to the land (but not native title);
• why the consultation requirements set out in the bill are taken to be an exhaustive statement of the rules of natural justice, and what this means in practice;
• why the bill enables the minister to make a notifiable instrument to prescribe additional land for all-weather access to the site (which is not subject to any form of parliamentary oversight); and
• if native title is extinguished without the full, free and informed consent of the traditional owners, what remedies are available to affected persons for any contravention of their rights to culture, self-determination and equality and non-discrimination.
2.178 The committee noted the legal advice that as the site may have cultural significance for First Nations people and as native title may be extinguished by these provisions, the bill appears to engage and may limit the rights to culture, self-determination and equality and non-discrimination. In order to assess whether the bill engages and limits these rights the committee sought the minister's advice as to the matters set out at paragraph [2.177].
2.179 The minister advised:
Any native title over the site specified in the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures} Bill 2020 (the Bill), as well as the bounds of the additional land that may be acquired for the expansion of the site, has been extinguished. The Barngarla people's native title claim is set out in the determination of the Federal Court which came into effect on 6 April 2018.
The Bill provides that (unspecified) land may also be acquired for the purposes of providing all-weather road access to the Facility. While it is unlikely that all-weather road access, if required, would extend into any land with native title interests (which are sufficiently outside of the site boundary}, the exact location of such a road would be determined by the regulators and cannot be anticipated at this stage.
As currently drafted, the Bill would provide the Minister with the ability to expressly exclude native title rights and interests (or any other rights or interests in the relevant land) from road access acquisitions, as it is not necessary for government to have exclusive rights and interests in supporting road infrastructure. Similar discretion is provided by the Act in its current form.
The Minister has received advice from the Attorney-General's Department and will act in accordance with the future acts regime under the Native Title Act 1993.
It is not the government's intention to extinguish native title rights or interests in the process of developing the National Radioactive Waste Management Facility, and amendments may be considered to make this clear.
In relation to land that may be acquired for all-weather road access, the Bill provides a mandatory consultation requirement which provides that the Minister must invite each person having a right or interest in the land to comment on the proposed acquisition, and must take all comments into account.
Why the consultation requirements set out in the bill are taken to be an exhaustive statement of the rules of natural justice, and what this means in practice
The Bill has been introduced to give effect to the Government's commitment to establish a single, purpose built National Radioactive Waste Facility at Napandee, near Kimba in South Australia, and to provide certainty to impacted communities and other stakeholders regarding the location of the Facility.
Although the Bill would prescribe the location for the Facility, the Facility could not be established without the necessary regulatory approvals, licences and permits. In the process of applying for these, it may become necessary for the Commonwealth to acquire additional land to allow for further enabling works, cultural heritage protection, community research and development opportunities, and to accommodate site-specific designs for the Facility. Regulators may also require secondary or emergency all-weather road access to the site.
New sections 19A and 19B would allow for the Commonwealth to make the additional land acquisitions that may be necessary for the Facility to be established at Napandee. They provide further certainty to impacted communities by ensuring the Commonwealth is equipped to deal with critical issues that could be raised by regulators that have the potential to prevent the Facility from being established at Napandee, and the validity of these acquisitions could become critical to ensuring that the Facility is ultimately able to be established at Napandee.
New section 19C would provide an exhaustive statement of the requirements of the natural justice hearing rule in relation to additional land acquisitions made under new sections 19A and 19B. At common law, the natural justice hearing rule broadly requires that a person 'be given a hearing before a decision is made that adversely affects a right, interest or expectation which they hold.[28] The requirements in new section 19C embody this principle, insofar as they would require the Minister to:
• notify the community of any proposals to make acquisitions under section 19A or 19B;
• invite interested persons to comment on the proposed acquisition; and
• take into account any relevant comments received prior to making the acquisition.
This would operate in a similar manner to section 18 of the current Act, which also provides an exhaustive statement of the rules of natural justice with respect to site selection decisions under section 14 of the Act. Both these sections would be repealed as part of the broader repeal of the current framework for selecting a site.
New section 19C seeks to retain the key elements of the 'procedural fairness requirements' set out in section 18 of the current Act, however these requirements have been adjusted to account for the fact that the Minister will no longer be empowered to decide the primary location for the Facility. Under the amendments, the Minister[29] would only be making minor, ancillary acquisition decisions with respect to land nearby the area prescribed by new section 5. In light of this, the requirements imposed by new section 19C will be less onerous than those imposed by current section 18. Among other things, the Minister will now need to provide at least 30 days for interested parties to comment on a proposed acquisition, as opposed to the 60 minimum required under the current arrangements.
New section 19C would ensure fairness remains at the centre of any decision-making under section 19A or 19B, while also addressing the uncertainties that flow from continually-evolving common law conceptions of natural justice. The codification of the natural justice hearing rule in this respect serves the broader objects of the Bill namely, to provide certainty to impacted communities and stakeholders. This is achieved by ensuring all parties are precisely aware of what is required to comply with the natural justice hearing rule, and to ensure additional land acquisitions are properly made.
New section 19C ensures an appropriate balance is struck between the rights of interested parties (to be heard before an additional land acquisition is made), and the need for communities and stakeholders to have certainty about the Commonwealth's ability to establish the Facility at Napandee.
By codifying the requirements of the natural justice hearing rule in this way, new section 19C promotes confidence in the validity of any additional land acquisitions that may be required to establish the Facility at Napandee.
Why the bill enables the minister to make a notifiable instrument to prescribe additional land for all-weather access to the site (which is not subject to any form of parliamentary oversight)
The provision to acquire additional land for all-weather road access exists in the current legislation. The specification of the site that would connect to such land, and requirement to make a notifiable instrument to prescribe such land, provides oversight beyond current provisions that enable a single minister to apply their absolute discretion to the land acquisition.
It is necessary to carry over a provision that provides that additional land may be acquired for these purposes to retain the ability to respond to regulatory requirements for access to the site.
The process to develop the National Radioactive Waste Management Facility is lengthy and complex, involving multiples phases of investigation and approvals. As part of the site selection process, the Commonwealth has undertaken 2 years of preliminary assessments and concept design of the site. Once the land described in new section 5 is acquired, the next phase involves further site investigations to support site-specific design development and regulatory approvals. While investigations to date have not identified the need for additional all-weather roads access, there remains the potential for such access to be required as a condition of the Australian Radiation Protection and Nuclear Safety Agency siting, construction and/or operational licenses. The Bill provides for this additional land to be acquired under s19B by notifiable instrument.
It is appropriate that this land be acquired through notifiable instrument rather than regulations, which would be subject to disallowance, as being unable to acquire this land at this point in the development process would adversely impact on the ability for the government to deliver the Facility which is necessary to support the nuclear medicine industry.
This is consistent with the approach in the Lands Acquisition Act 1989 and Land Acquisition Act 1969 (SA) both of which provide that land may be compulsorily acquired by government without Parliamentary oversight.
If native title is extinguished without the full, free and informed consent of the traditional owners, what remedies are available to affected persons for any contravention of their rights to culture, self-determination and equality and non-discrimination
There is no native title or registered heritage at the site or bounds of additional land specified in the Bill, and the Australian Government has no intention to extinguish native title in the course of acquiring land for the purposes of providing all-weather road access to the site.
If the Facility requires an all-weather road to traverse native title land, the government will engage with Traditional Owners in accordance with the future acts regime under the Native Title Act 1993.
The department is aware of the potential for unregistered Aboriginal cultural heritage to exist in the area, and has sought, and will continue to seek, the involvement of the Barngarla Development Aboriginal Corporation in minimising potential impacts on cultural heritage. To this end, the department is seeking Barngarla involvement in conducting a detailed cultural heritage assessment with qualified archaeologists and anthropologists, and creating a heritage management plan to assist with minimising and managing any potential impacts to heritage.
Any acquisition of any additional land will require consultation in accordance with new section 19C. That section is similar in effect to existing section 18, which will be repealed, and continues those procedural fairness requirements. Any person with a right or interest in the land must be given an opportunity to comment on the proposed acquisition, and their comments must be taken into account.
In any acquisition of land, people with rights or interest in the land can claim reasonable compensation.
2.180 The ability to compulsorily acquire additional land, which could lead to all rights and interests in that land being extinguished (including any native title) engages and may limit the rights to self-determination, culture and equality and non-discrimination. The minister has advised that any native title over the land specified for the site in the bill, including the expansion of the site, has already been extinguished. However, in relation to the expansion of the site for ‘all weather access’ the minister states that though it may be ‘unlikely’ that all-weather road access, if required, will extend into any land with native title interests, the exact location of such a road would be determined by the regulators and cannot be anticipated at this stage. The minister advised that such land would be acquired by way of a notifiable instrument, which is not subject to any form of parliamentary oversight,[30] because if the instrument were disallowed and land was then unable to be acquired, this would ‘adversely impact on the ability for the government to deliver the Facility’. However, the minister advises that it is ‘not the government’s intention’ to extinguish native title rights or interests through the measures in the bill, and that amendments may be necessary in order to make this clear. The minister states that if all-weather road access acquisition is necessary, the government will engage with the traditional owners in accordance with the future acts regime under the Native Title Act 1993.
2.181 As a matter of law, as the bill is currently drafted it would allow the minister, without any parliamentary oversight, to specify additional land for all weather access that may lead to the extinguishment of native title. Amendments to proposed subsection 19B(3) to specifically provide that native title cannot be extinguished, would be necessary to give effect to the government’s stated intention. Without such an amendment, there is a significant risk that the bill could lead to the extinguishment of native title in circumstances that would not comply with the international human rights obligations of the right to self-determination, culture and equality.
2.182 In addition, even if native title is not extinguished, the expansion of the site appears to engage and may limit the rights to culture and self-determination, noting the minister’s advice as to the potential for unregistered Aboriginal cultural heritage to exist in the area. As noted above, in determining whether any limits on the rights to culture and self-determination are permissible it is necessary to consider the extent to which relevant groups have been consulted. As set out above, this should protect the right of indigenous peoples to influence the outcome of decision-making processes affecting them, which is ‘not a mere right to be involved in such processes or merely to have their views heard’.[31]
2.183 Proposed subsection 19C sets out that each person who has a right or interest in the land must be invited, via a newspaper advertisement, to comment and the minister must take those comments into account. The bill provides that these requirements are taken to be an exhaustive statement of the rules of natural justice. The minister advises that this embodies common law principles and ensures fairness remains at the centre of decision-making, but also addresses the uncertainties that flow from continually evolving common law conceptions of natural justice. The minister’s response states that there is a balance to be struck between the rights of interested parties (to be heard before an additional land acquisition is made) and the need for communities and stakeholders to have certainty about the establishment of the site at Napandee.
2.184 It is an important safeguard that the minister must invite any person having a right or interest in the land to comment on the proposed acquisition, and must consider any submissions from such persons. However, the obligation under international human rights law to consult is much broader than mere comment prior to government acquisition. Proposed section 19C would seem to limit the consultation of the affected Indigenous groups to a ‘consideration’ of the comments of the affected persons or groups. In contrast, under international human rights law the requirement to consult has as its objective to seek the consent of the affected Indigenous groups, with consultation not limited to a single act but being a process of continued engagement with a view to not merely hearing the views of the affected Indigenous groups, but facilitating their contribution to the outcome.
2.185 The minister’s response also confirms that the department is aware of the potential for unregistered cultural heritage to exist in the area, and that the department has sought and will continue to seek the involvement of the Barngarla Corporation in minimising the potential impact to cultural heritage. This is relevant to protecting the right to culture and self-determination, however, this should be considered in light of the opposition of the Barngarla Corporation to the establishment of the Facility, which would therefore be likely to extend to any expansion of the facility.
2.186 In conclusion, the bill as currently drafted would allow the minister, without any parliamentary oversight, to specify additional land for all weather access that may lead to the extinguishment of native title. If this were not amended to specifically provide that native title cannot be extinguished, there is a significant risk that the bill could lead to the extinguishment of native title in circumstances that would not comply with the international human rights obligations of the right to self-determination, culture and equality. In addition, while the bill provides that before additional land is acquired, each person who has a right or interest in the land must be invited, via a newspaper advertisement, to comment and the minister must take those comments into account, the obligation under international human rights law to consult is much broader than mere comment prior to government acquisition. As such, there is some risk that the expansion of this site may not fully protect the rights to culture and self-determination.
2.187 The committee thanks the minister for this response. The committee notes that the bill would enable additional land to be acquired or extinguished to allow for the expansion of the site or to provide all-weather access to the site.
2.188 The committee welcomes the minister’s assurance that it is not the government’s intention to extinguish native title rights or interests in the process of developing the radioactive waste facility, and amendments may be necessary to make this clear. The committee considers it would be appropriate for the bill to be amended accordingly.
2.189 The committee also welcomes the minister’s assurance that the department is aware of the potential for unregistered cultural heritage to exist in the area, and that the department has sought and will continue to seek the involvement of the Barngarla Corporation in minimising the potential impact to cultural heritage, and that the bill sets out an obligation for the minister to consult anyone with a right or interest in the expansion of the site.
2.190 However, the committee notes the legal advice that the obligation under international human rights law to consult is much broader than mere comment prior to government acquisition. As such, the committee considers that there is a significant risk that the expansion of this site will not fully protect the rights to culture and self-determination.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020, Report 4 of 2020; [2020] AUPJCHR 55.
[2] Parliamentary Joint Committee on Human Rights, Report 3 of 2020 (26 February 2020),
pp. 2-10.
[3] Statement of compatibility, p. 6.
[4] Article 15 of the International Covenant on Economic, Social and Cultural Rights.
[5] Article 27 of the International Covenant on Civil and Political Rights.
[6] See, UN Human Rights Committee, General Comment No. 23: The rights of minorities (1994).
[7] Articles 1 of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. See, UN Committee on the Elimination of Racial Discrimination, General Recommendation 21 on the right to self-determination (1996).
[8] The UN Human Rights Council has recently provided guidance on the right to be consulted, as part of its Expert Mechanism on the Rights of Indigenous Peoples, stating that 'states' obligations to consult with indigenous peoples should consist of a qualitative process of dialogue and negotiation, with consent as the objective' and that consultation does not entail 'a single moment or action but a process of dialogue and negotiation over the course of a project, from planning to implementation and follow-up', see UN Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) paras [15]-[16].
[9] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) paras [15]-[16].
[10] UN Declaration on the Rights of Indigenous Peoples, article 3.
[11] UN Declaration on the Rights of Indigenous Peoples, article 11 and 12.
[12] Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (9 May 2017) pp. 122-123.
[13] The minister's response to the committee's inquiries was received on 13 March 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[14] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018) [15]-[16].
[15] As set out in a Federal Court decision, the local council did not consider that members of the Barngarla Determination Aboriginal Corporation (BDAC) were eligible to vote, as set out in a letter from the Council dated 31 May 2018, the 'Council acknowledged that BDAC’s members hold native title in respect of several parcels of land within its local government area and, further, that those native title rights and interests satisfied the definition of “owner” in the LG Act [...] however, that this ownership did not entitle BDAC’s members to be included on the voters roll as the land was “non-rateable”, and the native title holders were not ratepayers. Accordingly, they did not meet the enrolment criteria contained in s 14(1)(ab), (b) or (c) of the LGE Act.' Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092, [54].
[16] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach – Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018), [15]-[16].
[17] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach – Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018), [15]-[16].
[18] See the statement of compatibility that states the ‘level of engagement and local community support is evidenced in the outcome of a community ballot (conducted by the Australian Electoral Commission)’, p. 6.
[19] See Schedule 1, item 15, proposed new sections 19A and 19B.
[20] See Schedule 1, item 15, proposed new subsections 19A(4) and 19B(3).
[21] Schedule 1, item 15, proposed new subsections 19A(3) and 19B(2) and section 19C.
[22] Schedule 1, item 15, proposed new subsection 19C(4).
[23] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[24] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) para. [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.
[25] Committee on the Elimination of Racial Discrimination (CERD), Decision 2(54) on Australia, UN doc CERD/C/54/Misc.40/Rev.2, 18 March 1999.
[26] Committee on the Elimination of Racial Discrimination (CERD), Decision 2(54) on Australia, UN doc CERD/C/54/Misc.40/Rev.2, 18 March 1999.
[27] UN Committee on the Elimination of Racial Discrimination, Concluding Observations of the committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/18-20 (2017) paras [21]-[22].
[28] R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, p 629.
[29] In the case of an acquisition made under section 19A, in the Minister' s capacity as the rule maker for the regulations.
[30] Noting that section 42 of the Legislation Act 2003 provides that only legislative instruments are subject to disallowance, not notifiable instruments.
[31] UN Human Rights Council, Free, prior and informed consent: a human rights-based approach – Study of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/39/62 (2018), [15]-[16].
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