The lawyer representing a group of Traditional Owners say negotiations between them and Swedish weapons manufacturer Saab over a high-tech missile found in a registered heritage area could lead to a fundamental shift in the way weapon makers operate across the globe.
Lawyer John Podgorelec has been representing brothers Andrew and Robert Starkey as they pursue their complaint against Saab.
The Traditional Owners discovered the Saab RBS-70 missile in January 2021 while inspecting cultural sites within a registered heritage area called Lake Hart West in Woomera, remote South Australia.
Its discovery was reported by SBS News and NITV later that year.
The Starkeys are Kokatha Badu – respected senior figures, or lore men, who have devoted many years to documenting and preserving sites around Lake Hart.
They allege Saab failed to "undertake or maintain adequate human rights due diligence which could prevent their product being used in potential human rights violations", as well as failing to "preserve the integrity of heritage sites".
Their complaint was lodged with the Organisation for Economic Co-operation and Development (OECD), an international body that mediates disputes involving multinational businesses.
Kokatha man Andrew Starkey stands near the missile before it was retrieved from the site. Source: Supplied
In its initial assessment of the complaint, published at the weekend, the OECD recommended Saab enter discussions with the Traditional Owners.
"If this initial assessment goes through to final statement in the current form the international implications are far-reaching," Mr Podgorelec said.
"Government-issued export permits may no longer provide the shield weapons manufacturers have relied on to avoid their due diligence responsibilities.”
Following the initial assessment, the Starkeys and Saab will be offered the chance to enter negotiations before the OECD makes a final determination on the complaint.
Mr Podgorelec said it could have far reaching implications for international weapons sales.
“It would appear the way Defence handled this matter has left Saab exposed to a potentially game-changing level of scrutiny.
"Consequently, any company that may have their weapons misused in conflicts, including Yemen for example, may become similarly exposed."
The way Defence handled this matter has left Saab exposed to a potentially game-changing level of scrutiny.John Podgorelec, Lawyer
Saab has maintained that it is not the owner or the user of the missile, and that the complaint should be thrown out. It also argued that Aboriginal groups had “consented to the testing of war materials within the Woomera Prohibited Area”.
In its submissions to the OECD, Saab argued that weapons sold to the Australian government were “subject to strict export control laws … to prevent the use of regulated products in harmful ways”.
In a statement provided to SBS News on Monday, Saab said it "will review the findings, and continue to engage with the AusNCP [Australian National Contact Point for the OECD Guidelines for Multinational Enterprises], to determine any further required actions".
"To ensure the integrity of the AusNCP process, it is not appropriate for Saab to comment further at this time."
Lake Hart West has significance to the Kokatha people of the Western Desert region of South Australia.
It lies about 40 kilometres west of Woomera, which is home to a large weapons testing range used by the Defence Force.
Andrew Starkey has previously said the Saab missile was found near Aboriginal artefacts and rock art.
Although the missile was ultimately found to be inert, or non-explosive, the Department of Defence has not answered questions about how it came to be at Lake Hart West.
reads: “The Independent Examiner considers there are two areas for potential ‘good offices’.
The anti-aircraft missile. Source: Supplied
“These are the due-diligence policies and procedures within [Saab] regarding impacts of its products/services which could affect places and persons in testing areas like the Woomera Prohibited Area.
“And any proposed changes in the companies as a result of learning of the ordnance being found by the [Starkeys].”
The “good offices” are an offer from the OECD to mediate discussions between Saab and the Starkeys.
The OECD declined to progress other aspects of the Starkeys' complaint, including the federal government's actions and future commercial arrangements between Saab and the Department of Defence.
The surface of Lake Hart has been used for military tests, but the Department of Defence typically considers Lake Hart West off-limits due to its cultural significance.
A Defence Force map showing the various testing areas in the Woomera Prohibited Area. Source: Supplied / Department of Defence.
The South Australian government has confirmed Lake Hart West was recorded on the central archive of Aboriginal heritage sites in 2002.
“Defence does not use the area associated with Lake Hart West,” reads a confidential report prepared for the Department of Defence and obtained by SBS News.
The same report, prepared by a team of independent consultants, notes that Lake Hart West is “located outside a Defence use area”.
“The place has a low tolerance to change, due to its intactness, location on the margin of Lake Hart, and connection with law and wider ethnographic aspects,” it reads.
The Defence Department removed the missile in January 2022, some 12 months after it was first discovered.
The salt-encrusted surface of Lake Hart. Source: Getty / Getty/EyeEm
The department previously issued a statement saying it “manages heritage values on its estate in a way that is consistent with the principles and requirements of Commonwealth heritage legislation”.
“All reasonable precautions are taken to ensure the safety of non-Defence users and protection of culturally significant areas.”
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