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‘Bias’: Court dumps SA nuclear waste site decision

The Federal Court has set aside a decision to build a nuclear waste facility at Kimba, upholding the Barngarla people's case against the dump on their country.

The Federal Court has set aside a decision to build a nuclear waste facility at Kimba, upholding the Barngarla people's case against the dump on their country. Photo: AAP

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 South Australia’s Eyre Peninsula.

Justice Natalie Charlesworth handed down the ruling in Adelaide on Tuesday, quashing former federal resource minister Keith Pitt’s decision to build a National Radioactive Waste Management Facility at Napandee.

Justice Charlesworth said Mr 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. Corporation chair Jason Bilney welcomed the decision but said the group would “have continued that fight” if it 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, 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.

Her words were echoed by Barngarla elder Linda Dare, who also flagged the land being close to an important women’s site.

The court case was sparked by the former Morrison 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. The ballot found about 61 per cent of locals were in favour of the waste facility.

Federal Court effectively cancels controversial SA plan

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 of 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 was 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 100 locations across the country.

Tuesday’s decision upheld two applications for review. The key finding was that Judge Charlesworth upheld that the site selection was affected “by bias” and “pre-judgment” and the declaration of the site by Mr Pitt in November 2021 was “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.

The court battle has been costly. Last September, South Australian senator Barbara Pocock found that since January 1, 2017, the Commonwealth had spent at least $9,905,737 on legal work for the nuclear waste dump and the Australian Radioactive Waste Agency.

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

Senator 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 December 21, 2021, and a further $247,806 on in-house legal salaries.

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

Australian Conservation Foundation nuclear free campaigner Dave Sweeney labelled the decision a ‘red light’ for Kimba, saying the foundation urged the federal government to stop its radioactive waste plan.

“The plan is based on false assumptions and would deliver suboptimal outcomes,” Ms 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 Kimba community members and visited the planned site for the National Radioactive Waste Management Facility.

She also met Barngarla Determination Aboriginal Corporation 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 host of the facility, Kimba would receive a community development package of up to $31 million including a $20 million community fund, $8 million in grants to strengthen its 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, Defence Minister Richard Marles has been 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.

This article first appeared in InDaily and is republished here with permission

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