Opposition Senators’ Report
2.1
Opposition senators begin this dissenting report into
the Commonwealth Radioactive Waste Management Bill
2005 and Commonwealth Radioactive Waste Management (Related Amendments) Bill
2005 by objecting to the Government’s mishandling of this
inquiry. A one-day inquiry held in Canberra
did not allow the committee to visit the Northern
Territory and the people most affected by this bill.
Hearings in Katherine, Alice Springs
and Darwin would
have been appropriate. Less than a week was allowed for lodging submissions.
The hearing was held three days later allowing little time to scrutinise the
231 submissions. This report was scheduled for a week after the hearings,
leaving manifestly inadequate time to prepare considered reports by either
Government or Opposition Senators. This subversion of the Senate’s democratic
processes and effective law making reflects the Commonwealth’s intentions in
this bill.
2.2
As the Chief Minister of the Northern
Territory, the Hon. Clare Martin MLA noted:
Had the hearing been conducted in the Territory, either in
Darwin or in the regional centres closest to the proposed sites of Katherine
and Alice Springs, I can assure the committee there would be significantly more
Territorians in the room today.[39]
2.3
Opposition Senators thank those who contributed to the
inquiry, despite the obstacles placed in their way by the Commonwealth
Government.
2.4
In introducing this bill, the Commonwealth Government
has unilaterally abandoned the previously bipartisan approach to selecting a
site for a national nuclear waste dump. That approach was based on the careful
selection of a site on the basis of sound scientific principles and other
carefully developed criteria. The approach announced by the Minister for
Education, Science and Training, Dr Brendan
Nelson on 15 July 2005, lacks any scientific rigour, and is based
on political expediency.
2.5
Dr Nelson’s
decision was in direct contravention of promises given to Northern Territorians
prior to the 2004 federal election by the Federal Environment
Minister Senator Ian Campbell
on 30 September 2004 that
the Commonwealth was not pursuing any options for the radioactive waste dump
anywhere on the mainland or in the Northern Territory.
The Commonwealth is not pursuing any options anywhere on the mainland,
so we can be quite categorical about that, because the Northern
Territory is on the mainland.[40]
2.6
This bill is a heavy handed and undemocratic imposition
of Commonwealth power over its citizens and democratically elected State and
Territory governments, particularly in the Northern
Territory. As the Chief Minister of the Northern
Territory pointed out during the public hearing:
It is the adoption of a process that has been described as
‘decide, announce, defend’. It is about backroom decisions being made without
consultation and without discussion. It is about the imposition of the nation’s
radioactive waste on Territorians without their or their representatives’
involvement in any shape or form.[41]
2.7
The Government's sudden decision to impose a nuclear
waste dump on the Northern Territory
follows a long and ultimately unsuccessful series of attempts to force South
Australia to host this facility. As the Australian Conservation
Foundation observed in its submission:
Despite having targeted SA since late 1997 the federal
government ultimately had to recognise the electoral and political difficulty
in imposing the dump facility against strong community will. This lesson has
not been lost for Territorians facing nuclear dumping or on those communities
across Australia
concerned over the proposed transport of reactor waste through their region.[42]
2.8
Opposition Senators find themselves in agreement with
the Australian Conservation Foundation's assessment that the decision to site
the waste dump in the Northern Territory
increases risk to the health, safety and rights of communities across Australia.
As such, it is critical that community
consultation and careful scientific consideration underpin site selection and
nuclear waste transportation.
2.9
The process that led to the three Northern
Territory sites being identified lacked any rigour. It was carried out by officials from the
Department of Defence using what appear to have been the broadest of criteria,
as acknowledged by officers from the Department of Education, Science and Training
(DEST):
The department looked at the sites for their suitability
according to these criteria in a general sense, but we were also provided with
information on sites by the Department of Defence. We had very broad criteria
that did not require a high-level technical committee. Criteria were applied
such as proximity to infrastructure, proximity to population centres where you
might get some infrastructure support for the facilities, Defence’s plans for
the future use of the site, and likely growth constraints on sites. Defence’s
operating requirements were also important.[43]
2.10
In an extraordinary admission, DEST officers explained
that they had sought no independent expert advice whatsoever to aid site
selection.
Senator CROSSIN—In the Hansard for the estimates I read that the selection of
sites was done with advisers. Are you saying that that is predominantly
Department of Defence officials?
Mr Davoren—It is mainly officials, yes.
Senator CROSSIN—Mainly officials from the Department of Defence?
Mr Davoren—Yes.
Senator CROSSIN—So there was no-one else with a nuclear science or an environmental
science background?
Mr Davoren—My section have credentials in those areas.
Senator CROSSIN—I take it from that that it might have been external advice from
outside your department.
Mr Davoren—No, we did not have a panel of external
advisers. There was nothing like the store committee, for instance.[44]
2.11
DEST officials attempted to justify this rushed process
as being driven by the return of reprocessed fuel rods from France
in 2011, and the time it would take to work through the Australian Radiation Protection
and Nuclear Safety Agency's (ARPANSA) regulatory processes. This argument is
weak and assumes that independent expert advice or community consultation would
have hindered the site selection process.
2.12
The site announcement was also made before ARPANSA had
completed finalising what will undoubtedly be relevant and useful guidelines
that should have informed the site selection process:
ARPANSA is currently preparing regulatory guidance to assist
applicants in preparing the information that should be provided in any
application to prepare a site for, construct and operate radioactive waste
management facilities - that is, a radioactive waste disposal facility, near
surface, and a radioactive waste store. This guidance will draw upon
high-level, current international guidance that represents international best
practice in radiation protection and nuclear safety for such facilities. The
draft guidance will be published shortly for a period of public comment prior
to its finalisation in the new year.[45]
2.13
The low level waste repository is a permanent facility
likely to likely to house waste needing protection for between 100 to 300
years. The intermediate waste stored at the site will need management for
thousands of years. Given these timelines, the haste in arbitrarily imposing a
site in the Northern Territory
for this facility is unacceptable. A proper scientific process should be
followed in conjunction with the States and Territories.
2.14
These bills are designed to quash all opposition to the
Government's plans to impose a nuclear waste dump on Northern Territorians and
transport nuclear waste across Australia.
In order to do this, the bills exclude State and Territory laws where they
would 'regulate, hinder or prevent' investigation of the sites, construction of
the nuclear waste dump and transportation of nuclear waste. They similarly
prevent the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
and the Environment Protection and
Biodiversity Conservation Act 1999 from having effect during investigation
of the sites. These bills exclude the Native Title Act
1993 and the Lands Acquisition Act 1989
from operating at all.
2.15
The Senate Scrutiny of Bills Committee has expressed
serious concern that the Commonwealth
Radioactive Waste Management Bill 2005 overrides
all State and Territory legislation that gets in the way of the nuclear waste
dump. The committee said:
The Committee draws Senators’ attention to the provisions, as
they may be considered to trespass unduly on personal rights and liberties, in
breach of the principle 1(a)(i) of the Committee’s terms of reference.[46]
1(a)(i) asks the Committee
to examine all bills before the Parliament and report to the Senate whether
such bills 'trespass unduly on personal
rights and liberties.'
2.16
The Scrutiny of Bills Committee is also concerned that
the bill removes people’s rights because it gives the Minister total power over
selecting a site for the waste dump. The Committee has demanded that the
Science Minister justify 'the inclusion
of this absolute ministerial discretion and for the abrogation of procedural
fairness.'[47]
2.17
This is extreme
and excessive legislation and cannot be justified by a democratic
Government. This Scrutiny of
Bills Committee report is a further blow to the legitimacy of the waste dump
legislation.
2.18
Similarly, the
Arid Lands Environment Centre was concerned that these bills set a dangerous
precedent by over-riding well-tested legislative protections:
The proposed legislation removed critical protections offered to
the public by existing legislation... These well-tested and well-understood
instruments are the result of years of debate and consideration by the public
and their representatives. The whole
point of these protections is to protect and defend against activities that
threaten the values we cherish in our society, as expressed in a clear mandate
from our society.[48]
2.19
The bills, if passed, will over-ride Territory
legislation in a way not seen before. As the Chief Minister explained:
This bill that we are discussing today totally overrides any
aspect of the Territory’s laws that it chooses, particularly in relation to the
siting of a nuclear waste facility and the transportation of anything to that nuclear
waste facility. It overrides Territory laws that were put in place to prevent
this from happening and takes away any aspect of review that we could do or any
challenge that we could make to those laws. It really reinforces, from a
Territory point of view, our total impotence about this. We have had a serious
look at it legally and there is no capacity for us to challenge this at all.[49]
2.20
The second bill in the package, the Commonwealth
Radioactive Waste Management (Related Amendments) Bill 2005, also adds the Commonwealth Radioactive Waste Management
Act 2005 to the classes of decisions that are not decisions to which the Administrative Decisions (Judicial Review)
Act 1977 applies.
2.21
This means
that once the Minister has exercised absolute discretion to declare one of the
sites nominated as the future site for the nuclear dump, and extinguished all
non-commonwealth rights and interests in the relevant land, the decision is not
subject to any form of judicial review. It would not be possible for example to
launch a challenge along the lines of that successfully pursued against the
compulsory acquisition of land in South Australia. It is noteworthy that the decision in that
case was based, at least in part, on the lack of procedural fairness.
Effectively, this means that no persons affected by the Commonwealth's decision
have any redress if they believe the decision to be unfair.
2.22
The second
bill, along with the proposed removal of procedural fairness provisions in the
site selection process, mean that the Commonwealth Government is removing
transparency and accountability from the site selection process
altogether. This unprecedented exercise
of power coupled with the arrogance of the Commonwealth Government in overriding
community concerns is unacceptable behaviour for a democratically-elected
government.
2.23
Not only do the bills specifically prevent the
application of these important Acts, they also allow the Commonwealth, by
regulation, to exclude other as-yet unspecified Commonwealth laws and
regulations from hindering investigations. In short, in seeking passage of
these bills, the Commonwealth is seeking virtually unfettered power to do as it
wishes during the process of site assessment and waste transportation, with no
recourse to legal action possible by any affected parties. As noted by the
Environment Centre NT Inc:
Under the legislation the Minister would have the power to
unilaterally add further pieces of State or territory legislation to the list
of laws to be overridden in pursuit of the waste dump.[50]
Lack of consultation
2.24
From the evidence received by the Committee, there was
no prior notice given to the Government of the Northern
Territory, Land Councils or residents that the
Government had selected the three sites in the Territory as possible dump sites.
As the Chief Minister told the Committee, the first she heard of it was the
press release from the Minister:
The next we heard was in a press release from Brendan
Nelson, as the responsible minister, saying
that three sites had been selected in the Northern
Territory. They were three sites simply that were
Defence land. There was no science; there was no consultation with
Territorians. It was just a kind of pre-emptive strike from Canberra
saying to the Territory, ‘There’s not actually been much truth in what we’ve
said to you so far, because we’ve changed our minds radically and now we’re
choosing the Northern Territory.’
Territorians quite reasonably were very angry about it.[51]
2.25
Similarly, the Alice Springs Council told the Committee
that the first the Mayor heard of the proposal was on a local radio broadcast.[52] Alderman van
Haaren told the Committee that this lack of
consultation had not been rectified:
The lack of consultation with local government has continued. At
this point in time we still have not been briefed in particular about the
consequences of siting such a facility within close proximity of Alice
Springs or local government. We anticipate that there may be some
implications and some planning that we need to take into account, or even to a
degree there may be a burden on local government that we are not aware of. We
have not had any particular briefing on those issues at all.[53]
2.26
Mr Barry
and Mrs Val
Utley, owners of the property adjacent to
one of the sites identified in the bill, Fishers Ridge near Katherine,
were also not given any advance notice, and found out about the proposal
virtually by accident:
...a friend rang us that night and said, ‘Did you happen to get
the newspaper?’ We do not often get the newspaper. ‘It mentions that Fishers
Ridge is to be one out of three sites chosen for a nuclear waste dump.’ The
news turned our world upside down.[54]
2.27
Mr Bill
Daw, Alderman of Katherine Town Council,
highlighted the Commonwealth Government’s real intentions in his submission:
There is a fine line between strong leadership and arrogance,
and it would seem that this line is about to be crossed on this issue by a
mile.[55]
2.28
The failure to consult with, or even give advance
notice to those who were likely to be affected, including individuals,
traditional owners and the Northern Territory Government, demonstrates at best
a lack of simple courtesy, and at worst a blatant pre-emption and deception of
the communities most affected by this Commonwealth Government decision.
Disregard for the views of Traditional Owners
2.29
The views of traditional owners, who control much of
the Northern Territory, have been
disregarded in this process. The Central Land Council (CLC) was particularly
strong in its rejection of the proposal:
Traditional landowners for both the Alcoota/Harts Range and Mt
Everard sites are strongly opposed to the
Commonwealth radioactive waste management facility being located at either site
or on any part of their country, and instructed the CLC to assist them to
oppose such a facility from proceeding.[56]
2.30
It is clear from the submissions of both the Central
and Northern Land Councils that the traditional owners they represent wish to
retain a right to veto specific sites on environmental or sacred site grounds.
This is not provided for in the bill.
2.31
It is noteworthy that the CLC regards the amended
provisions of the bill allowing for a land council to propose a site as
unworkable. The Land Council must show that traditional owners of a proposed
site understand the nature and effect of the nomination and the things that
might be done on or in relation to the land. However the CLC submission notes:
Until an area is nominated not even the Commonwealth will know
what needs to be done for the purpose of selecting a site, in relation to that
specific area. It may not even know what needs to be done until some time after
it accepts a nomination. Yet the traditional landowners are required to know
all of that before they make a nomination. The ultimate consequence of a
successful nomination could be the loss of all their interests in the land and
in any all weather access required, upon a declaration pursuant to clause 7.
Thus it follows that it is virtually impossible for a land council to meet the
requirement for nomination of an area of Aboriginal land, both as to the sacred
sites requirement and the informed consent requirement.[57]
2.32
It appears that traditional owners in North Eastern
Arnhem land also oppose the proposal to site the nuclear dump on their land,
despite the statements of the NLC. Mr Wirilma
Mununggur, who identified himself as the
senior traditional owner of the Djapu clan, submitted that:
Mr
Yunupingu and the NLC have no right or
authority, traditional or otherwise, to call for a nuclear waste facility in
our region, unless they have consulted with, and have the consent of all the
other traditional owners whose land estates would also be affected by such a
facility.
...
As the senior traditional owner of
the Djapu clan, I say I do not want such a facility anywhere that might affect
our land, rivers or sea country. We are very concerned about the safety and
environmental impacts of such a facility and the transport of wastes. We are
also concerned how the security and surveillance that must accompany such a
facility may impact on our lives and region.[58]
Environmental impacts
2.33
The original site selection criteria established after
the search for a site recommenced in 1992 included the following:
-
low
rainfall, free from flooding, good surface drainage, stable geomorphology;
-
a
generally stable hydrogeological setting and a water table at least 5 metres
below the buried waste;
-
geology
and hydrogeology amenable to modelling groundwater and radionuclide movements;
-
away
from known or anticipated tectonic, seismic or volcanic activity that could
destabilise disposal structures or affect the containment of the waste;
-
no
groundwater that is potable or suitable for agriculture can be contaminated;
-
low
population density with little prospect for increase or development; and
-
geochemical
and geotechnical properties that inhibit radionuclide migration and facilitate
repository operations.[59]
2.34
From these criteria, it is clear that environmental
considerations were crucial to selecting a site. These considerations have been
ignored in the selection of the three sites. The selection of the Katherine
site is particularly worrying, as it is in the highest rainfall zone in the Northern
Territory, and is over a major aquifer, the Tindal
aquifer. This aquifer is important in providing water for several local
horticultural developments. Groundwater and flooding are also significant
issues in relation to the Harts Ridge site. As the Chief Minister noted:
Publicly available information shows that the underground water
beneath the Fishers Ridge site is directly connected to the deeper Tindal Limestone
aquifer. Katherine’s water supply and many
commercial horticulturalists depend on bores in this aquifer. The aquifer
drains into the Katherine-Daly river system all year round. The location of a
radioactive waste facility at Fishers Ridge raises concerns for the town’s
water supply, the environment and tourism. These issues should immediately have
removed Fishers Ridge from contemplation on even the most cursory scientific
analysis.[60]
2.35
In relation to the Katherine
site, Ms Sharon
Hillen of the Katherine Nuclear Dump Action
Group told the Committee that the site is also prone to
both wildfire and flooding:
Flooding and fire is a phenomenon in this country, particularly
in Fishers Ridge. I will start with fire. We live in a country that has a very
large fuel load of long grass, or spear grass, and fires happen every year...
Flooding is something of a problem as well. Every year we have a
flood. ...As Mrs Utley
said, the country here acts as a sponge and it retains a lot of water. When you
get a big fall of rain, you can expect a large amount of ponding and run-off of
water, simply because the water table and the soil above it are saturated. This
has been particularly so in the last 10 years, when we have had major rainfall
events.[61]
2.36
In
relation to the Harts Range site, the Chief Minister suggested that the underground
water beneath this area has sediments that are likely to be highly permeable.
Looking at the second site, Harts
Range, the underground water
beneath this area has sediments that are likely to be highly permeable. There
is significant ground water in the area which feeds into surrounding creeks.
The site is between two very active waterways, the Ongeva and the Anamarra
creeks, and a rare megaflood has the potential to damage any radioactive
storage facility. Again, a scientific analysis would probably have removed Harts
Range from consideration at a very
early stage.[62]
2.37
Without
engaging in the scientific basis of these arguments, Opposition Senators regard
it as unacceptable that the Government did not seek any independent scientific
expertise before identifying these three sites.
2.38
The Australian Conservation Foundation also drew the
Committee's attention to previous serious shortcomings in the Commonwealth's
proposals for the disposal of nuclear waste in South
Australia, and to concerns raised by the South
Australian Government which were still not addressed at the post Environmental Impact Statement stage in the Licensing
Application to ARPANSA:
The Committee should be aware of serious shortcomings in previous
federal government proposed siting, design and studies for the burial of
radioactive waste. The concerns expressed earlier by the SA government have an
importance resonance in relation to the federal proposal for an NT dump and the
current draft legislation.
“I reiterate this Government’s strong opposition to the establishment of
this facility in South Australia and reaffirm that we can not, and will not,
provide support to the establishment or operation of the facility, particularly
when the Commonwealth has failed to adequately prescribe the design of a
facility which could result in detrimental environmental outcomes.”
(Letter from John Hill, SA Environment Minister to Dr David Kemp, then federal Environment and Heritage Minister,
October 2002.)[63]
Medical Necessity
2.39
Members of the Commonwealth Government have attempted
to justify the urgency of this bill by inferring medical need. In a 13
October 2005 press release, the Member for Solomon
and Senator Nigel Scullion suggested that Australia
would not have access to radio-pharmaceuticals after April 2006 if the siting
decision about nuclear dump were to be delayed:
A decision on the final site for the waste management facility must
be made by April and a Territory Government legal
challenge would take us well beyond that time.
If a decision is not made within a
matter of months Australia
will no longer be allowed to produce radioactive isotopes used in hospitals throughout
the country.
Australians must be guaranteed continued access to lifesaving radiopharmaceuticals.
The Government has acted to ensure those in need do not lose that access. At
some stage in their life, every Australian is likely to benefit from the use of
radiopharmaceuticals.[64]
2.40
The Medical Association for the Prevention of War
(MAPW) disputes the argument that medical isotopes would not be available thus
endangering lives, if the waste dump were delayed. The Lucas
Heights reactor already shuts down
for 4-6 weeks for maintenance purposes on a regular basis. During scheduled shutdowns, the key isotopes
are imported from overseas. MAPW
suggests that it is emotionally manipulative to draw a direct link between the
waste dump and isotope production.
The “medical necessity” is worse than fallacious: it is
deliberately misleading. It is a particularly
contemptible manipulation of the emotions of the sick and dying.[65]
2.41
Further Dr Nelson
conceded that there is no specific end date by which the existing reactor at Lucas
Heights must cease production in
favour of the new construction currently under construction.
Ms Macklin – That is not to do with my question. I am
asking about the date for the current reactor.Continue
Dr NELSON – Yes. The chief executive of ARPANSA is
not constrained as to when he makes his decision on the ARPANSA operating licence.
ANSTO is working with ARPANSA on the expectation that a decision will be
reached around April 2006, and the HIFAR—
...
Ms Macklin – There is not an actual end date? Continue
Dr NELSON – There is no specific end date. There is
no doubt, from the government’s point of view, that the chief executive of
ARPANSA would be seriously stretching his own credibility, and that of ARPANSA,
if he were to allow HIFAR to continue much beyond the end of 2006. As I
emphasised earlier in the debate, in 2011 the first shipments of reprocessed
fuel will arrive back from the UK and France.[66]
2.42
It is irresponsible and unacceptable for the
Commonwealth Government to resort to emotional blackmail.
Developing Community Confidence
2.43
Opposition Senators note that the International Atomic
Energy Association (IAEA) itself has emphasised the importance of a transparent
and inclusive community consultation process in gaining community acceptance of
controversial decisions such as the siting of waste disposal facilities:
Recent experience suggests that broad public acceptance will
enhance the likelihood of project approval. An important element in creating
public acceptance is the perceived trust and credibility of the responsible
organisation and the reviewing agency or agencies.
Establishing trust can be enhanced when an inclusive approach to
public involvement is adopted from the beginning of the planning process to
help ensure that all those who wish to take part in the process have an
opportunity to express their views, and have access to information on how
public comments have been considered and addressed.
Experience further suggests that trust is promoted by providing
open access to accurate and understandable information about the development
programme, conceptual design and the siting process at different levels of
detail suitable for a broad range of interested parties.
In addition to the perceived credibility of the responsible
organisation, other aspects of public acceptability can be location-specific,
based on local requirements and cultural context.[67]
2.44
It is clear that the process proposed by the Government
in these bills does not in any way try to implement IAEA guidelines. This failure to properly consult with the
affected community is evidence of the Commonwealth Government’s failure to take
into account, or to comply with, international best practice as set out by the
international regulatory and advisory body responsible for policy in this area.
Conclusions
2.45
Opposition Senators consider that the bills are deeply
flawed, and a heavy handed and unwarranted exercise of Commonwealth power. The
best interests of the Northern Territory
and the Australian community would be better served if the Government commenced
a rigorous site selection process that is inclusive of affected communities.
2.46
Opposition Senators accept the need for a nuclear waste
dump to manage the radioactive waste produced by the Lucas
heights reactor and from other sources.
However Opposition Senators do not accept the Commonwealth Government’s
arguments about the necessity of this heavy-handed legislation. The Government has not made a compelling case
for the urgency or heavy-handedness of the legislation. These bills are a display of arrogance on the
Commonwealth Government’s part and must scrapped in favour of proper consultative, scientific and inclusive
process for a nuclear waste dump.
2.47
Opposition Senators urge the State and Territory
Governments to recommence a co-operative process in order to resolve the issue
of storage and management of nuclear waste in this country and to find the best
possible site for this.
Recommendation
Opposition Senators recommend that the bills be rejected.
Senator Trish Crossin
Senator
Anne McEwen
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