Traditional Aboriginal owners want a nuclear waste dump on their NT land, plus quite a bit of money … Move to unstitch Commonwealth settlement with neighbouring community, which is opposed to the nuclear dump … Back to court … Top End reporter Subeta Vimalarajah follows the action 

The settlement deed was the outcome of widely reported proceedings commenced in 2010 by various Aboriginal applicants, represented by Maurice Blackburn and Ron Merkel QC. 

Those applicants alleged that they had not been, but should have been, consulted before the NLC nominated land on the southern boundary of Muckaty station for consideration as a site for a nuclear waste repository. 

Muckaty is a 2,380 square kilometre property held as Aboriginal freehold about 110 kilometres north of Tennant Creek. The Ngapa group is one of the traditional owners of the land. 

The initial proceedings, and the proceedings filed last month, both concern the statutory obligations of NLC under the Aboriginal Land Rights (Northern Territory) Act (1976) Cth. 

Under the Act, land councils are established to protect the interests of traditional Aboriginal owners, and are only to make decisions regarding “Aboriginal land” if they are satisfied that traditional owners understand and consent to any proposed action.  

“Aboriginal land” under the Act refers to land granted or successfully claimed due to a proven traditional relationship with the land. The land is held by Aboriginal land trusts, for the benefit of traditional owners.

In exercising their functions under the Act, land councils employ anthropologists to determine the traditional owners to be consulted.  

This was a source of disagreement in the initial Muckaty proceedings, with the Ngapa applicants in this case continuing to allege that the applicants from the initial proceedings were not traditional Aboriginal owners of the site.  

Aboriginal land councils are empowered to nominate areas of Aboriginal land for consideration as a repository site. In 2007, the NLC nominated the Muckaty site for the repository once it was satisfied that the Ngapa group members, who they had deemed the traditional Aboriginal owners for the Muckaty Aboriginal Land Trust, had unanimously consented. 

The nomination was formally approved, and pursuant to the nomination deed the Ngapa traditional owners and members of neighbouring groups stood to gain $12 million, held in a charitable trust, if the site was ultimately endorsed. 

In 2013, following a successful scientific assessment of the site and the commencement of litigation by the other Aboriginal applicants, the Commonwealth offered an increased sum of $17 million to the Ngapa traditional owners if the site was formally nominated. 

However, in June of 2014, NLC executed a deed with the other Aboriginal applicants to settle proceedings, which included an undertaking to the court that NLC would not act upon the nomination and approval of the repository site. 

Prior to executing the deed, NLC met with some traditional owners to discuss the settlement offer. However, various Ngapa traditional owners and Aboriginal people who supported the original nomination allege they were not consulted.  

The Ngapa traditional owners argue that in executing the deed NLC breached both its statutory obligations to protect the interests of traditional owners and its duty of care at common law by not appropriately consulting the Ngapa traditional owners.  

The Ngapa traditional owners also allege that Justice Tony North did not have the jurisdiction to make orders in accordance with the settlement deed, which quashed the nomination and approval of the site. 

They argue that, as the NLC did not admit any facts or error, HH’s jurisdiction to exercise judicial power was not enlivened. 

Following the settlement, the Federal Industry Minister at the time, Ian Macfarlane, made a declaration that had the effect of removing the possibility of nominating any Aboriginal land as a potential site for a nuclear repository, excluding the option for the Ngapa traditional owners to nominate the site again.

The application was filed on June 20, and has been served on the NLC and the Muckaty Aboriginal Land Trust, with the hearing date to be advised.  

The applicant Jason Bill is reported to have said: 

“All we’re asking for is a low level waste dump. We’ve looked into it and heard from the professionals, and it’s not going to damage the environment. 

We need the money so we can buy cattle, build houses ands really get our station going.”