BARNGARLA traditional owners who fought to stop a nuclear waste facility planned for a site in Napandee near Kimba in South Australia, have won their fight in court. Madeleine King, minister for resources, said the government did not intend to appeal the judge’s decision.
The ruling concludes a long-running battle between traditional owners and the Australian government, who were looking to house a national low- and intermediate-level radioactive waste facility on a 160 ha chunk of land within Napandee.
Landowner Jeff Baldock voluntarily nominated a portion of his farming property in Napandee after calls for potential site nominations were made by the government in 2015. Baldock would have been paid four times the value of 100 ha of the land as part of the deal, but in an interview with The Guardian, the landowner said that the real advantage would be providing economic benefit to the thousand or so residents of a struggling agricultural district.
Following a recommendation in 2020 that parliament pass legislation to make Napandee the preferred site for the facility, former coalition resources minister Keith Pitt formally declared Napandee as the location a year later, meaning the Commonwealth would acquire the land.
As the host community for the facility, the government said Kimba would receive a community development package of up to A$31m (US$20m), and that the local region would also benefit from improved infrastructure, including water, power, communications, transport, and waste.
However, some of the area's traditional landowners under a group known as the Barngarla Determination Aboriginal Corporation (BDAC), argued they were not properly consulted about the decision to select the site, and sought judicial review of the 2021 declaration.
The group had already launched legal action against the district council of Kimba in 2018 over a non-binding ballot sent to local residents on the proposed facility and won a Supreme Court injunction postponing the ballot while the legal challenge was being heard. But BDAC, who argued the vote contravened the Racial Discrimination Act by excluding native title holders, lost the court case, and the claim was dismissed.
The Barngarla people, who did not live in the council area, held a separate ballot which unanimously rejected the proposal. They argued if the two ballots were combined, they would show the majority of affected people were against it.
Now triumphant, the corporation’s chair, Jason Bilney, said after the ruling: “It’s about listening to the First Nations people.” He said the fight over their traditional lands had continued for 21 years – with the waste dump just the latest instalment. “The lesson is about truth-telling. You can go on about the voice, but it’s about listening to the First Nations people and here we are today and we prevailed and we won,” Bilney said.
The Australian Conservation Foundation said it welcomed the outcome adding it was “a welcome and sensible decision by minister King and federal Labour to scrap this plan…which was inconsistent with international best practice and community sentiment”.
The ruling by Justice Natalie Charlesworth to set aside the Commonwealth’s decision to build the nuclear facility near Kimba, was on the grounds of apprehended bias “arising from apparent pre-judgment” in the site selection process by Keith Pitt, the former coalition resources minister.
In her reasoning, Charlesworth said that the words and conduct [of the former minister] “could reasonably be understood by the fair-minded observer to mean that minister Pitt had already made up his mind about the selection of Napandee as the site”.
Charlesworth also noted that: “[Pitt’s] statements, demonstrated unswerving dedication to achieving a factual outcome for the benefit of those persons in Kimba who favoured the facility being located at Napandee, whilst at the same time displaying a dismissive attitude to its key opponent, the Barngarla people.”
In response to the finding of apprehended bias, the respondents – named as Pitt, and the Commonwealth in the court documentation – argued that such a finding “would have the consequence that ministers responsible for the administration of statutes could never participate in robust political discourse with respect to the subject matter of their statutory powers or with respect to the repeal or amendment of the law”. This, however, was rejected by the judge.
According to the most recent national inventory conducted in 2021, Australia has 13,287 m3 of low-level radioactive waste, and 4,377 m3 of intermediate-level radioactive waste – the vast majority of which comes from the production of nuclear medicine such as cancer treatments. This is currently stored in facilities that are not purpose-built, including hospitals, science facilities, and universities.
Over the years, numerous suggestions have been made for a suitable site to store Australia’s nuclear waste, including a similar facility in South Australia in 1998. This fell by the wayside when the Howard government withdrew its plans after losing a fight with the South Australian Labour government in the federal court.
Then, in 2007, a property called Mukaty Station in the Northern Territory was put forward to host a nuclear waste facility, but this too was later dropped.
Two other facilities were shortlisted as potential sites along with Napandee, namely, Lyndhurst, and Wallerberdina, but in her response to the court ruling, King said that the government would not be pursuing either of the sites. However, she revealed they had begun work on alternative proposals for the storage and disposal of radioactive waste. “This is not where we wanted to be, but we have to start from where we are,” said King. “This government is determined to get this right.”
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