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AUKUS high-level nuclear waste dump must be subject to Indigenous veto
Bipartisan secrecy and Defence’s poor record with Indigenous groups at Woomera are red flags for the consultation over AUKUS high-level nuclear waste facility.
This is part one of a two-part series. Read part two.
The federal government had no public mandate for any of the AUKUS decisions: no mandate to enter the agreement, none to acquire eight nuclear-powered submarines for up to $368 billion, and none to establish a high-level radioactive waste facility. On this last, in fact, it had long term evidence to suggest Australians would likely oppose the proposition.
Perhaps this is why both major political parties concealed for 18 months, a period including the federal election, their shared knowledge that AUKUS requires a high-level radioactive waste facility to be built.
The AUKUS agreement was revealed on 15 September 2021. On 14 March 2023, deputy prime minister and defence minister, Richard Marles, announced the nuclear waste facility. Next day, opposition leader Peter Dutton said: ‘The Labor Party signed up to AUKUS knowing they would have to deal with the waste, and now that they’re in government they know that’s a part of the deal.’ The government has not denied Dutton’s claim.
Furthermore, Marles stated as a fait accompli that the waste facility will be built at a ‘remote’ site – code for Indigenous land – despite the fact that Indigenous people have repeatedly objected, and still are, to radioactive waste being stored on their land.
Meanwhile, the Albanese government continues its work to establish an Indigenous Voice to Parliament. Just nine days after the prime minister was in San Diego announcing the AUKUS submarine deal and his deputy Marles came clean about the radioactive waste facility, Anthony Albanese released the proposed Voice wording. The prime minister noted in his speech the importance of consultation, ‘it’s common courtesy and decency to ask people before you take a decision that will have an impact on them’.
Governments have been trying for decades to put a radioactive waste dump in outback Australia. They have been rebuffed time and time again. Yet the Albanese government is trying once more.
Legal experts have pointed out the international legal requirement to obtain the free, prior and informed consent of Indigenous peoples before making significant decisions that affect them. This process includes giving Indigenous peoples full information about a development in advance and respecting their choice to give or withhold consent.
The UN Declaration on the Rights of Indigenous Peoples, which Australia has pledged to support ‘in both word and deed’, says: ‘[No] storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.’
As to whether the government can claim ‘national security’ as a reason to avoid these obligations and dictate a radioactive waste site, international human rights law expert John Podgorelec says: ‘States may not derogate from their responsibilities on the basis of national security unless a “state of emergency” has been formally invoked.’
He adds, ‘A lesson to come out of the Iraq calamity is that manufactured or undisclosed national security intelligence cannot be used to subvert democracy.’
Unfortunately, the Defence Department’s fact sheet on nuclear stewardship and waste is light on detail. It does not mention free, prior and informed consent. Defence commits only to ‘consultation and engagement’ – a lesser standard – and adds that it will also consider ‘wider social license and economic implications’. Globally, the ‘economic implications’ of significant projects habitually undermine human rights, particularly those of Indigenous peoples.
Furthermore, Defence has a poor track record of engagement with Indigenous people in one of its key locations, South Australia’s Woomera Prohibited Area (explored further in part two).
Woomera is used by Australian and foreign military forces, in close partnership with multinational weapons corporations, for extensive weapons testing and military training activities.
‘When militaries around the world need a place to test their weapons and fly their new fighter jets, there’s nowhere better than the rugged expanses of South Australia,’ enthused US weapons giant Raytheon in 2016, talking up ‘a further expansion of US-Australian cooperation’.
The Woomera weapons testing range covers one-eighth of South Australia, occupying more than 122,000km2. Before Defence took over, less than a century ago, Indigenous people had inhabited the region for tens of thousands of years.
Despite the international outcry at the destruction of Juukan Gorge, the Defence Department has not changed its behaviour. For example, it continues to use a registered Indigenous heritage site in Woomera as a target zone for high explosive weapons tests. (I visited this and other sites inside Woomera last year at the invitation of Andrew and Bob Starkey, senior Kokatha lawmen and traditional owners.)
Defence is aware of the site’s significance, just as Rio Tinto was aware of the significance of Juukan Gorge. Defence’s heritage management plan, relevant sections of which I have seen, says the site has a ‘high level of Aboriginal heritage value’ and is a place of ‘sensitive cultural significance that can be easily impacted’. The public might wonder how Defence can know this yet still decide it’s acceptable to direct high explosive munitions onto the site.
‘The Commonwealth cannot give with one hand and take with the other,’ says Podgorelec, who acts for the Starkeys, on the tensions between federal commitments to Indigenous heritage protection and to AUKUS. He says there is no question Defence would require the free, prior and informed consent of Indigenous people before a high-level nuclear waste facility could proceed on their land. He also says in those circumstances the government must provide a veto right, because the project would eliminate future access to traditional Indigenous land.
Australia is not alone in being unable to find a radioactive waste solution. The UK has failed for decades to make meaningful progress on dismantling decommissioned nuclear submarines – it currently has 21 of them floating in dockyards awaiting disposal, mirroring its wider failure to resolve its nuclear waste problems. The US has also failed in this regard: spent fuel from its nuclear submarines remains in temporary storage. Griffith University’s Emeritus Professor Ian Lowe has written that the nuclear waste from US military and civilian reactors ‘is just piling up with no long-term solution in sight’.
Defence does not mention this pertinent information in its brief positive account of US and UK nuclear stewardship.
The federal government gave its response to the Juukan Gorge inquiry report in November 2022. Minister Tanya Plibersek, whose Environment portfolio encompasses Indigenous heritage protection, said:
[T]hese are thorough and considerate reports… the recommendations speak to the principles and priorities that will shape our [heritage protection] legislation. Free, prior, and informed consent.
If Plibersek knew about the radioactive waste facility and its intended siting in remote Australia at the time AUKUS was announced she has kept quiet about it.
Free, prior and informed consent requires that intimidation and coercion be avoided. Plibersek is well aware of the possibility of abuses of power in high stakes developments. In her speech, she noted partnership agreements were signed under ‘gross inequalities of power’ between the traditional owners of Juukan Gorge and Rio Tinto.
A far more substantial inequality of power now exists between the Indigenous groups to be consulted about the site of the radioactive waste facility and the Defence Department. The facility has solid bipartisan support. In addition, it is essential to the AUKUS submarine deal, meaning Defence embodies the combined wishes of the Australian, British and United States governments.
Podgorelec is adamant. ‘Australia cannot enact domestic laws that undermine its international legal obligations. If a project will take away Indigenous cultural connection to land forever – as a high-level nuclear waste facility will do – then the government is obliged to give a right of veto.’
Editorial note 6.12.23: Since publication of this article, the Defence Department’s webpage ‘Nuclear stewardship and waste’, which we linked, has been removed. A search of the Defence website today did not find the information elsewhere. The original page can be viewed via the Wayback Machine web archive – an invaluable public resource supporting transparency and accountability.
Editorial note: The legal basis for free, prior and informed consent was explained by John Podgorelec as lead author of Adelaide University’s submission to the 2015 SA Nuclear Fuel Cycle Royal Commission. Unfortunately, having been available until late April 2023, the Royal Commission’s website has been taken down. The Adelaide University submission can be accessed here via the Wayback Machine web archive.
This article was also published at John Menadue’s Pearls & Irritations on 6.5.23