Antinuclear

First nations rights and colonising practices by the nuclear industry: An Australian battleground for environmental justice 

PDF of full article available on request (jim.green@foe.org.au)

First nations rights and colonising practices by the nuclear industry: An Australian battleground for environmental justice  Jillian K. Marsh and Jim Green

The Extractive Industries and Society  July 2019

https://www.sciencedirect.com/science/article/pii/S2214790X18302491

Abstract

This paper highlights current events and original research to explore the tensions between First Nations, industry and government in the context of uranium mining and nuclear waste management in Australia. We outline challenges faced by Aboriginal Australians in their role as custodians of the land, and as community leaders. A critical examination of some of the barriers to First Nations empowerment includes government engagement through legislation and practices that have repeatedly resulted in dispossession and disempowerment of Australian Aboriginal Traditional Owners. Laws ostensibly designed to provide rights and protections to Aboriginal people are repeatedly curtailed or overridden to facilitate nuclear projects—in particular radioactive waste repositories and uranium mines. We argue that existing measures provide feeble rights and protections for Aboriginal people as laws have repeatedly produced outcomes that favour government and industry and deny Aboriginal rights to sovereignty. Our research highlights patterns of colonial oppression that transgress human rights, and frames mining and nuclear waste in a way that lacks a decolonisation strategy and are based on industrial violence. Theoretical understandings of Indigenous sovereignty through a decolonising lens will highlight Indigenous standpoints, the continued contestation of Indigenous peoples’ customary land rights, and the limitations of post-colonial environmental justice.

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Conclusions

The government and industry approach to environmental and cultural justice sits uneasily with the principle of free prior and informed consent enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. The government approach lacks credibility based on the idea that consultation is somehow an equivalent and acceptable form of a consenting process.

The extractive industries use strategies that are corporate-driven, well supported by governments, and widely practiced. Engagement protocols with First Nations peoples in Australia expose structural inequalities within the native title negotiating space. These principles are now extensively used in Australia by proponents to negotiate compensation of loss with Aboriginal and Torres Strait Islander peoples for the adverse impacts caused by exploration and mining. The reality for many Aboriginal people is a continuation of the erasure of human rights, and continued denial of the illegal claims made by the British in claiming sovereignty to lands already occupied. Indigenous occupancy of lands and waters was never ceded, and Traditional Owners are forced to continue living with damage and destruction of their country.

The denial of Yura muda, and all that it encompasses, reinforces colonial misunderstandings of Indigenous governance and social order, confines community engagement dialogue to cultural significance, and is used by industry and government to justify the continued refusal to recognise sovereign rights. This pattern of denial is systematically used to colonise the lands, peoples and resources of Australia. These beliefs and practices still underpin the attitudes, policies and practices within government and industry. First Nations peoples of Australia continue to argue against nuclear expansion on Aboriginal lands for a range of reasons including lack of due process, questionable economic viability, dismissal of environmental risk factors, denial of cultural significance, and disregard for Indigenous human rights.

To suggest that Aboriginal opposition rests purely with religious beliefs (and is therefore ineligible for debate) is ironic, inaccurate and racist. The irony of such a claim is evident from the history of colonial oppression enacted during the 1900s by the Australian government which enabled the cultural genocide of First Nations peoples across the Australian continent on the basis of sub-human status.

In this paper, we have noted numerous examples of State and Commonwealth laws, ostensibly designed to provide some rights and protections for Aboriginal First Nations, being curtailed or overridden to facilitate radioactive waste repository projects and uranium mines.

For example, the Federal Government used the Commonwealth Lands Acquisition Act 1989 to seize land for a national radioactive waste repository in 2003 and native title rights and interests were extinguished.

Another example is where Aboriginal groups were coerced into signing heritage clearance agreements consenting to test drilling of short-listed sites for the proposed repository in South Australia and their consent was repeatedly misrepresented by the Federal Government as amounting to Aboriginal consent for the repository.

We conclude by also claiming that the Commonwealth legislation governing the process of establishing a national radioactive waste repository, the National Radioactive Waste Management Act, dispossesses and disempowers Traditional Owners in various ways: For example, it curtails the application of Commonwealth laws including the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 as well as the Native Title Act 1993 and this latter act is expressly overridden in relation to land acquisition for a radioactive waste repository.

An earlier example of proponents having such liberties is the Olympic Dam mine being exempt from provisions of the South Australian Aboriginal Heritage Act 1988 (it might or might not have to comply with some provisions of the 1979 version of the Act). Sub-section 40(6) of the Commonwealth Aboriginal Land Rights Act exempts the Ranger Uranium Mine in the Northern Territory from the act and thus removes the right of veto that Mirarr Traditional Owners would otherwise have enjoyed over the development of the mine. The case study concerning the Beverley Uranium Mine demonstrates how the IA process and native title negotiations were used to dispossess Adnyamathanha Traditional Owners of their sovereign rights to governance practices, cultural and economic resources, and their obligations to customary land rights.

The process of disempowerment used throughout these case examples illustrates continued erasure of native title rights at the expense of a continuation of colonial land use practices that prioritise government and industry rights. State and Commonwealth laws provide limited rights and protections, and such laws have been repeatedly curtailed or overridden to facilitate repository or uranium projects.

While these patterns clearly demonstrate gross power imbalances between Aboriginal First Nations on the one hand, and industry and governments on the other, it should be noted that resistance has been strong and numerous projects have been stopped. Examples include proposed national radioactive waste repositories in South Australia (1998–2004) and the Northern Territory (2005–2014), the defeated plan to establish a nuclear waste import business in South Australia, and proposed uranium mines such as Jabiluka and Angela Pamela in the Northern Territory.

Existing laws and legal challenges have sometimes been used to challenge and delay nuclear and uranium projects. Examples include the successful challenge in 2003 by the State of South Australia and a native title claimant against the Federal Government’s acquisition of land for a national radioactive waste repository and a legal challenge against the nomination of a site in the Northern Territory for a national radioactive waste repository (the nomination was withdrawn in 2014, before the court case had concluded). The injunction won by Barngarla Traditional Owners regarding their exclusion from the community ballot at Kimba is one of the most recent examples at the time of drafting this paper.

Legal challenges have a place in resistance against nuclear and uranium projects, but community resistance outside of the legal system has been a more important and successful strategy to stop such projects.

Case studies such as the Jabiluka and Angela Pamela uranium mines, failed attempts to impose a national radioactive waste repository in South Australia and the Northern Territory, and the defeated plan to establish a nuclear waste import business in South Australia, all reveal a common pattern. That pattern involves strong determined resistance by Aboriginal people, supported by civil society allies including environment groups, trade unions, church groups, public health groups and others.

Collaboration at the grassroots, as well as intellectual level, offers dignity and purpose to First Nations peoples and a process of crosscultural reconciliation that offers the opportunity to build meaningful relationships. These processes of community engagement stand in stark contrast to the dubious government-led processes of consultation that typically result in community divisions and failed attempts to engage respectfully and meaningfully with First Nations peoples in Australia.

At a national as well as local level, the nuclear-free Black-Green alliance is helping to forge a responsible and peaceful global citizenship through the assertion of Indigenous sovereign rights, environmental sustainability, and human rights.

July 27, 2019 - Posted by Christina Macpherson | aboriginal issues, AUSTRALIA - NATIONAL