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‘Bias’: Court dumps SA nuclear waste site decision

Tears of jubilation have greeted a Federal Court ruling in favour of the Barngarla Determination Aboriginal Corporation’s battle to stop a nuclear waste site being built near Kimba on the Eyre Peninsula.

Jul 18, 2023, updated Jul 21, 2023
Barngarla elder Linda Dare celebrates today's Federal Court decision. Photo: Tony Lewis/InDaily

Barngarla elder Linda Dare celebrates today's Federal Court decision. Photo: Tony Lewis/InDaily

Justice Natalie Charlesworth handed down the ruling in Adelaide this morning, quashing former Federal Resource Minister Keith Pitt’s decision to build a National Radioactive Waste Management Facility at Napandee.

Justice Charlesworth said Pitt’s decision was affected by “bias” and set it aside.

“The court’s view is that the only appropriate substantive and dispositive order is that the whole of the decision made is set aside,” she said.

Cheers were heard as Traditional Owners and supporters left court, with corporation chair Jason Bilney welcoming the decision but saying the group would “have continued that fight” if the decision was different.

“We have had the support of members, our elders, conservation groups, community groups, the farmers of Kimba, we stand together as one,” he said.

Barngarla Elder Dawn Taylor, who appeared in a film telling the story about why she supported the action, today admitted to having tears in her eyes knowing the “seven sisters women’s site” located at the waste dump was now protected.

“I’m just glad we’ve won,” she said. Words echoed by Barngarla elder Linda Dare who also has flagged the site being close to an important women’s site.

The court case was sparked by the former Morrison Federal Government announcing in November 2021 that land near Kimba would be home to the new facility, with “majority support” secured from the local community.

Court action for a judicial review was launched by traditional owners through the Barngarla Determination Aboriginal Corporation in 2021 to fight the decision, leading to a “David and Goliath” legal battle.

The corporation claimed traditional owners were excluded from a ‘community ballot’ as many did not live in the Kimba council area, with the ballot finding about 61 per cent of locals were in favour of the waste facility.

During hearings, the court heard that the Barngarla were concerned about the process leading to the decision and disagreed with the former government’s view that following seven years public consultation the site had community support in Kimba.

The corporation argued that the decision was unreasonable given the lack of proper consultation with Indigenous owners.

An alternative survey of Barngarla Traditional Owners found 83 voted ‘no’ and none voted ‘yes’ to the proposed dump, with the corporation claiming this was ignored.

According to the Federal Government, the facility is meant to consolidate Australia’s low-level radioactive waste permanently and intermediate level waste temporarily. It said most of the waste was generated from nuclear medicine production and stored in more than one hundred locations across the country.

The decision today upheld two applications for review, but the key finding was that Judge Charlesworth upheld that the site selection was affected “by bias” and “pre-judgement” and the declaration of the site by former Minister Keith Pitt in November, 2021, is “set aside”.

Costs will be discussed at a hearing in August along with discussion around the fact that the Federal Government has already bought the land near Kimba for the proposed site.

The court battle has been costly. InDaily reported last September that in reply to questions on notice, SA senator Barbara Pocock heard that since January 1, 2017, the Commonwealth Government had spent at least $9,905,737 on legal work for the nuclear waste dump and the AWRA (Australian Radioactive Waste Agency).

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In addition, the Government has reimbursed the Kimba District Council $634,013.28 for its costs litigating against Barngarla Determination Aboriginal Corporation (BDAC).

Pocock’s question on notice also revealed that the government had, at that stage, spent $607,613.48 directly against BDAC since the litigation began on 21 December 2021, and a further $247,806 spent on in-house legal salaries.

By comparison, the Barngarla people spent approximately $124,000 on legal fees between 21 December 2021 and 26 July 2022.

Australian Conservation Foundation nuclear free campaigner Dave Sweeney labelled the decision a ‘red light’ for Kimba, saying the foundation was calling on the Federal Government to now stop its radioactive waste plan.

“The plan is based on false assumptions and would deliver sub-optimal outcomes,” Sweeney said.

“This waste lasts longer than any politician and it needs to be responsibly managed. More responsible and credible alternatives exist and should now be properly examined.”

In January, Resources and Northern Australia Minister Madeleine King MP met with Kimba community members and visited the planned site for the National Radioactive Waste Management Facility.

She also met Barngarla Determination Aboriginal Corporation (BDAC) Board members in Kimba and other Traditional Owners.

Other Kimba residents who support the facility had welcomed benefits to the region through jobs and improved water, power, communications, transport and waste infrastructure.

On its website, the Federal Government says as hosts of the facility, Kimba will receive a community development package of up to $31 million including a $20 million community fund, $8 million worth of grants to strengthen Kimba’s economic and skills base and $3 million from the government’s Indigenous Advancement Strategy to support First Nations opportunities.

In relation to other potential nuclear waste that could have been stored at the site, Federal Defence Minister Richard Marles has made it clear that higher level waste that will be generated from nuclear reactors on the nation’s new submarine fleet will be stored on yet-to-be-chosen defence land.

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