The Kupa Piti Kungka Tjuta and the proposed radioactive waste repository in SA: 1998-2004

This is an excerpt from a joint submission to SA Nuclear Fuel Cycle Royal Commission by Friends of the Earth, Australian Conservation Foundation and Conservation SA.

In 1998, the Howard government announced its intention to build a radioactive waste repository near Woomera in South Australia. Leading the battle against the dump were the Kupa Piti Kungka Tjuta[1], a council of senior Aboriginal women from northern SA. Many of the Kungkas personally suffered the impacts of the British nuclear bomb tests at Maralinga and Emu in the 1950s.

The late Mrs. Eileen Kampakuta Brown, a member of the Kungka Tjuta, was awarded an Order of Australia on Australia Day in 2003 for her service to the community “through the preservation, revival and teaching of traditional Anangu (Aboriginal) culture and as an advocate for indigenous communities in Central Australia”. On 5 March 2003, the Australian Senate passed a resolution noting “the hypocrisy of the Government in giving an award for services to the community to Mrs. Brown but taking no notice of her objection, and that of the Yankunytjatjara/Antikarinya community, to its decision to construct a national repository on this land.”

The proposed repository was also opposed by Native Title claimant groups, namely the Kokatha and the Barngala.

The proposed repository was opposed by the Aboriginal and Torres Strait Islander Commission. (ATSIC). Acting Chair of ATSIC, Lionel Quartermaine, argued in a submission to ARPANSA in 2003:[2]

“The Nulla Wimila Kutju Regional Council is fully supportive of the Kupa Piti Kungka Tjuta … who have been vocal in their opposition to the proposed [repository] siting. Many witnessed the effects on their people of the Atomic Tests conducted in their country in the 1950s. It is patently unfair that these should now once again face the prospect of being at risk of radiation exposure.”

A 14 April 2003 letter from the Federal Environment Department’s Indigenous Advisory Committee stated:

“The Kupa Piti Kungka Tjuta, senior Aboriginal women of north SA, fundamentally oppose this nuclear waste dump which they see as the imposition of poison ground onto their traditional lands.

The Kokatha people, as registered native title claimants, oppose the nuclear waste dump and the intended acquisition and annulment of their native title rights and interests.

Throughout the EIS process under the EPBC Act, the Native Title claimants and other community members feel that there has not been adequate consultation. Traditional owners have also not been able to find out about the intended legal approach of the Commonwealth Government in carrying out key aspects of the proposed project.”

All of these clear and public objections were ignored by the federal government.

Public relations

The proposed dump generated such controversy in SA that the federal government hired a public relations company.[3] Correspondence between the company and the government was released under Freedom of Information laws. In one exchange, a government official asks the PR company to remove sand-dunes from a photo to be used in a brochure.[4] The explanation provided by the government official was that: “Dunes are a sensitive area with respect to Aboriginal Heritage”. The sand-dunes were removed from the photo, only for the government official to ask if the horizon could be straightened up as well.

False consultation and coercion

The Federal Government’s approach to ‘consultation’ was spelt out in a document leaked in 2002.[5] The document states: “Tactics to reach Indigenous audiences will be informed by extensive consultations currently being undertaken … with Indigenous groups.” In other words, sham ‘consultation’ was used to fine-tune the government’s promotion of the repository.

Aboriginal groups were coerced into signing agreements consenting to test drilling of short-listed sites for the proposed dump. The Federal Government made it clear that if consent for test drilling was not granted by Aboriginal groups, that drilling would take place anyway. A clear signal of the Government’s intent to proceed regardless of Aboriginal support for or engagement in the process came on 30 April 1999, when the Federal Government issued a Section 9 notice under the Land Acquisition Act 1989 which gave the government legal powers to conduct work on land that it might acquire to site the dump.

Aboriginal groups were put in an invidious position:

• they could attempt to protect specific cultural sites by engaging with the Federal Government and signing agreements, at the risk of having that engagement being misrepresented or misunderstood as consent the dump per sé; or
• they could refuse to engage in the process, thereby having no say in the process whatsoever.

It is important to note that given the current absence of any effective veto right over mining proposal on their lands – with the exception of some provisions on the Aboriginal Land Rights Act – this unsatisfactory and fundamentally unfair power imbalance remains the common Aboriginal experience today.

Aboriginal groups were between “a rock and a hard place” according to Stewart Motha from the Aboriginal Legal Rights Movement, which represented the Antakirinja, Barngarla, and Kokatha people in negotiations over the dump. Mr. Motha said:

“If Aboriginal groups do get involved in clearances [for test drilling] they face the possibility that the Government will point to that involvement as an indication of consent for the project. If they refuse to participate, who will protect Aboriginal heritage, dreaming and sacred sites?”

Parry Agius, manager of the Aboriginal Legal Rights Movement’s Native Title Unit, said:

“The nuclear waste repository issue highlights the inadequacy of native title rights as they are currently constituted under the Native Title Act and is a showcase for the consequences of the 10 Point Plan. While native title purports to recognise Aboriginal peoples’ particular relationship to the land, and the negotiations we are currently undertaking are aimed at protecting Aboriginal heritage, the commonwealth government may extinguish these rights by compulsory acquisition.”

Dr. Roger Thomas, a Kokatha man, told an ARPANSA forum on 25 February 2004[6]:

“The Commonwealth sought from the native title claim group the opportunity to carry out site clearances. They presented to us, as a native title group, some 58 sites that they would like us to consider for the purpose of cultural significance clearance. Of the 58, there were seven sites that they saw as being the priority locations for where they had intentions to want to locate the waste repository. I would like it to be registered that, of the 58, the senior law men and women had difficulty and made it quite clear that there was no intent on their part to want to give any agreement to any of those sites. … The point of concern and controversy for us is that we were advised − and we were told this by the various agencies involved − ‘If you don’t proceed with signing the agreement, the Federal Government will acquire it under the constitution legislation.’ From our point of view, we not only had the shotgun at our head, we also were put in a situation where we were deemed powerless. If this is an example of the whitefella process and system that we’ve got to comply with as Indigenous Australians, then we attest that this whole process needs to be reviewed and looked at and we need to be given under the convention of the United Nations the appropriate rights as Indigenous first nation people. Our bottom line position is that we do not agree with any waste material of any level being dumped, located or deposited in any part of this country.”

Aboriginal groups did reluctantly engage in surveys resulting in the signing of so-called Heritage Clearance Agreements. Heritage assessment surveys were conducted by three groups:

• Antakirinja, Barngala and Kokatha Native Title Claimant Groups;
• Andamooka Land Council Association; and
• Kuyani Association.

One risk was that those Heritage Clearance Agreements would be misrepresented by the Federal Government as amounting to Aboriginal consent to or even support for the dump per sé. That risk was in fact realised. Federal Government politicians and bureaucrats repeatedly made reference to the surveys and the resulting Agreements without noting that those Agreements in no way amount to consent to the dump. The following excerpt from Senate Hansard provides an example of this type of misrepresentation-by-omission (30 October, 2003, p.16813, question 2118):

Senator Allison (Australian Democrats) asked the Minister representing the Minister for Science, upon notice, on 18 September 2003:

(e) have any Indigenous groups consented to the construction and operation of the repository at the site known as Site 40a; if so, which groups;

(f) have any Indigenous groups stated that Site 40a has no particular Indigenous heritage values; if so, which groups;

Senator Vanstone — The Minister for Science has provided the following answer to the honourable senator’s question:

(e) The site has been cleared for all works associated with the construction and operation of a national repository, with regard to Aboriginal heritage, by the Aboriginal groups with native title claims over the relative site as well as other groups with heritage interests in the region. These groups are the Antakirinja, Barngala and Kokotha Native Title Claimant Groups, the Andamooka Land Council Association and the Kuyani Association.

(f) See answer to (e).

There was no recognition in the above statement of Aboriginal opposition to the dump.

The same misrepresentation-by-omission occurred in the Environment Department’s Environmental Assessment Report regarding the planned dump and in numerous other Federal Government statements.

Jeff Harris, an official with the federal government, told an ARPANSA forum that: “… those Aboriginal groups that have heritage interests in those lands we have consulted extensively with them, and each of the three sites that are going through environmental impact assessment has been inspected by these Aboriginal groups and have cleared for the construction and operation of the repository.”[7]

The claim that the sites were “cleared for the construction and operation of the repository” was false.

The conflation between Heritage Clearance Agreements and consent for the construction and operation of a radioactive waste repository occurred repeatedly despite the fact that the Heritage Clearance Agreements specifically noted Aboriginal opposition. One such Agreement, between the Federal Government and the Antakarinja Native Title Group, the Barngarla Native Title Group and the Kokatha Native Title Claimant Group, dated May 12, 2000, included the following clauses:

E. The agreement to undertake Work Area Clearances is not to be deemed as consent, and the COMMONWEALTH do not under this Agreement seek such consent, by the Claimants to the establishment of a NRWR in the Central North Region of South Australia.

I. The COMMONWEALTH acknowledges that there is “considerable opposition” to the NRWR within the Aboriginal community of the region, but notwithstanding that the Claimants have made a commitment that the heritage clearance and the contents of the Work Area Clearance Report will not be influenced by such opposition.

The Federal government never publicly released those clauses of the Agreement.

Land seizure

In 2002, the Federal Government tried to buy-off Aboriginal opposition to the dump. Three Native Title claimant groups − the Kokatha, Kuyani and Barngala − were offered $90,000 to surrender their native title rights, but only on the condition that all three groups agreed. Two of the groups − the Kokatha and Barngala − refused, so the government’s ploy failed.

Dr. Roger Thomas, a Kokatha man, told an ARPANSA forum on February 25, 2004[8]:

“The most disappointing aspect to the negotiations that the Commonwealth had with us, as Kokatha, is to try to buy our agreement. This was most insulting to us as Aboriginal people and particularly to our elders. For the sake of ensuring that I don’t further create any embarrassment, I will not quote the figure, but let me tell you, our land is not for sale. Our Native Title rights are not for sale. We are talking about our culture, our lore and our dreaming. We are talking about our future generations we’re protecting here. We do not have a “for sale” sign up and we never will.”

According to The Age, the meetings took place at a Port Augusta motel in September 2002 and the Commonwealth delegation included representatives of the Department of the Attorney-General, the Department of Finance and the Department of Education and Science and Training.[9]

Dr. Thomas said: “The insult of it, it was just so insulting. I told the Commonwealth officers to stop being so disrespectful and rude to us by offering us $90,000 to pay out our country and our culture.”[10] Andrew Starkey, another Kokatha man, said: “It was just shameful. They were wanting people to sign off their cultural heritage rights for a minuscule amount of money. We would not do that for any amount of money.”[11]

In July 2003, the federal government used the Lands Acquisition Act 1989 to seize land for the dump. Native Title rights and interests were extinguished with the stroke of a pen.[12] This took place with no forewarning and no consultation with affected Aboriginal people.

Victory for the Kungkas

The Kupa Piti Kungka Tjuta continued to implore the federal government to ‘get their ears out of their pockets’, and after six long years the government did just that. In the lead-up to the 2004 federal election, with the repository issue deeply unpopular, and the Federal Court having rejected the government’s use of urgency provisions in the Lands Acquisition Act, the Howard government decided to abandon the dump plan.

The Kungkas wrote in an open letter: “People said that you can’t win against the Government. Just a few women. We just kept talking and telling them to get their ears out of their pockets and listen. We never said we were going to give up. Government has big money to buy their way out but we never gave up.”[13]