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Traditional owners win legal battle over nuclear waste storage


On 18 July the Barngarla traditional owners for the Kimba region in South Australia were successful in their court case against the federal government regarding the proposed site of a national radioactive waste management facility. 

On emerging from the Federal Court building in Adelaide, chair of the Barngarla Determination Aboriginal Corporation Jason Bilney hailed it as a ‘David and Goliath’ victory. 

Former Coalition resources minister Keith Pitt declared in 2021 that the Commonwealth had acquired Napandee, a property west of Kimba, to establish a nuclear waste facility. It would be used to consolidate the storage of low and intermediate-level radioactive medical waste that is currently stored in more than 100 locations across the country. While the land of the Napandee site itself is freehold, the Barngarla people hold native title in surrounding areas.

Although opponents of the proposed site hoped the plan would be abandoned following the Labor party’s 2022 federal election win, federal resources minister Madeleine King instead said the new Labor government was committed to progressing the facility.

Following the announcement of their court ruling preventing the construction of the facility, Bilney delared, ‘It’s the fight that we continue, and you feel it from the heart no matter where we are, whether it's our Country or other people's Country’. Barngarla elder Aunty Dawn Taylor, who was born at Kimba, was delighted at the result: ‘I am so happy for the women’s sites and dreaming on our country that are not in the firing line of a waste dump. I fought all this time for my grandparents and for my future generations as well.’ 

On presentation of the verdict four months after the Barngarla complaints were presented at the March court sessions, Judge Natalie Charlesworth upheld the most significant: that there was ‘apprehended bias’ in the decision-making process by former Coalition resources minister Keith Pitt in the formal selection of the site.

In her report the day following the decision, ABC News reporter Josephine Lim wrote: ‘In upholding the apprehension of bias argument, Justice Natalie Charlesworth found that the Coalition minister, who formally declared the site in 2021, could be seen to have a "foreclosed mind" on the issue "simply because his statements strongly conveyed the impression that his mind was made up".’


'It’s a significant victory on the long journey of the Barngarla to protect their country, waters and culture and future generations.'


Outside the Court, lawyer for the Barngarla Nick Llewellyn-Jones said findings of apprehended bias against a minister were ‘very rare’. ‘It's set a precedent for Aboriginal groups to take a stand; it's set a precedent also in terms, I believe, of what standards are required of Commonwealth ministers,’ Mr Llewellyn-Jones said. ‘Our clients have won, and it's obviously a great victory for them, but in fact it's a vindication of the entire system that we have that people out there do have options when government affects their lives.’

A few hours later, on the local (891) ABC Evening Show, host Peter Goers conducted his post-Court radio interview with Dave Sweeney, nuclear campaigner for the Australian Conservation Foundation, and Jim Green, nuclear campaigner for Friends of the Earth. 

As Sweeney summarised: ‘This declaration was quashed, with the verdict that this was a politicised choice rather than an evidence-based choice.’

Jim Green, while warning that the victory was not the end of the campaign, remained optimistic: ‘The government might yet appeal the decision. However it seems likely that the plan for a nuclear dump on Barngarla country will instead be abandoned.’

Rowan Ramsey is the Member for the vast federal district of Grey, which now takes in most of the geographical region of South Australia. In 2015, Ramsey was one of the initiators of Kimba as the site for the proposed federal nuclear dump. He declined an offer to participate in this radio session, but from overseas cited elsewhere his disappointment.

In response to proponents of the waste facility reportedly ‘gutted’ by the outcome of the court case and the loss of the $32 million promised to the district for the 100 years of the project, leading anti-Dump grain farmer Peter Woolford pointed out that last season’s bumper crop brought in many times that amount in just one year.

And what did former minister Pitt have to say of the verdict? In his interview with Chris Kenny on Sky News, there was no reference to ‘apprehended bias’. He referred to a selective list of low level radioactive waste items that would have been disposed of at the facility — gloves, gowns, needles — presumably to assure listeners that opposition to the project had been overblown. A conspicuous omission was the fact that over 90 per cent of the waste planned for storage (not disposal) at the Kimba facility was intermediate nuclear waste, including spent fuel rods from the former nuclear reactor (with a half-life of 10,000 years of radioactive toxicity). In a further interview, Pitt made the patently false claim that Australians’ access to nuclear medicine was at risk following the court decision preventing construction of the facility. 

In the Sky News interview, Mr Pitt also declared that Australia would ‘run out of space’ to store low and intermediate-level nuclear waste by 2030. This, despite the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) having declared to the 2020 Senate Committee that the Lucas Heights site of Australia’s Nuclear Science and Technology Organisation (ANSTO), producer of the waste, has space enough ‘for decades’.

In his speech to the same Committee, federal Labor Member for Freemantle Josh Wilson noted ARPANSA’s lack of concern at any delay in building a new facility. Wilson’s own admonition was that the nation’s intermediate-level waste should stay where it is ‘until the government of Australia identifies and resources an appropriate permanent disposal site for intermediate-level waste’.

Dr Susan Close, now the Labor deputy premier of South Australia, has consistently opposed the Kimba nuclear waste facility, while SA State Labor has long supported a veto by the traditional owners. Even Federal Labor, while in opposition, ensured that the Barngarla would be permitted the judicial review.

It’s a significant victory on the long journey of the Barngarla to protect their country, waters and culture and future generations. 




Michele Madigan is a Sister of St Joseph who has spent over 40 years working with Aboriginal people in remote areas of SA, in Adelaide and in country SA. Her work has included advocacy and support for senior Aboriginal women of Coober Pedy in their successful 1998-2004 campaign against the proposed national radioactive dump.

Main image: Deputy Chair Jonas Dare, Senior Elder Maureen Atkinson, Jason Bilney, BDAC Lawyer Nick Llewellyn-Jones. Credit: Conservation SA

Topic tags: Michele Madigan, South Australia, Nuclear waste, Kimba, South Australia



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Existing comments

How very sad that Federal Member for Grey,
Rowan Ramsay though it was ok to subject his rural electorate of South Australia to a nuclear waste dump.
Rowan Ramsay is fully aware that 93% of roads on Eyre Peninsula are no capable of carrying freight trucks and under his watch the railway was closed down.
How sad Mr Ramsey failed to understand the impact of a nuclear dump on his rural electorate's major international grain and fishery exports, let alone the health of his community.
His fellow, Canberra politicians were very happy to have the AUKUS nuclear waste dump 'out of sight' of a capital city and located near a remote rural South Australian town.
In 2015, Rowan Ramsey was one of the initiators of Kimba as a site for the proposed federal Government nuclear waste dump.
For almost 18 years, Federal Member, Rowan Ramsay played off local farmers, First Nations and towns folk against each other.
Eyre Peninsula has a long history of community and trust.
The unethical process of negotiating to build a nuclear dump in Kimba was a sham from the beginning.
Of course, Rowan Ramsay cowardly declined an offer to participate in a radio interview and cowardly from overseas cited his disappointment.
Let's hope Australian taxpayers were not funding Rowan Ramsay to be conveniently overseas for the release of the AUKUS Nuclear Waste Dump decision.
Together West Coasters won this time.

Patricia Boylan | 10 August 2023  

Today August 10 2023 is an extraordinary day in this 8 year campaign for and against the federal governments, both Coalition and Labor- to establish a nuclear dump both low level and intermediate level nuclear waste on Barngarla country and prime SA farming country - as
outlined in the article.
In the article while the Barngarla rejoiced over their July 18th court win, long time campaigner Jim Green, while also rejoicing issued a note of caution- the warning that the victory was not the end of the campaign. But today - as the Minister, Madeleine King declared to Parliament- it is over!
And not for the reasons the Member for Grey is asserting but that there was ‘apprehended bias’ in the decision-making process by former Coalition resources minister Keith Pitt in the formal selection of the site. Restores ones faith in democracy - thanks to the Barngarla hope, faith and perseverance

Michele Madigan | 10 August 2023  

Congratulations to all involved in this triumph for all forward-thinking people in Australia, especially the Indigenous heroes. Thanks to you Michele, and all who work with you, for your dedication to such an important matter.

Susan Connelly | 11 August 2023  

This is another well-informed article from Michele.

The wonderful footnote to it is yesterday's (10/08/23) announcement by Minister Madeleine King that there will be no appeal to the Federal Court ruling in favour of the Barngarla People. All work on the Kimba nuclear dump will cease immediately. She has previously said that the characterisation work currently being carried out at the Kimba site is not permanent and is reversible.

Of course, the issue of permanent disposal for all of Australia's radioactive waste still remains, and the future waters are clouded by the AUKUS nuclear powered submarine decision. Minister King's announcement said that "work has begun on alternative proposals for the storage and disposal of the Commonwealth's civilian low and intermediate level radioactive waste".

Spent fuel from nuclear submarine reactors is high level. This will also have to be permanently disposed of in a suitable facility. The specifications required for such a facility would make it more than adequate for the disposal of the other waste categories that were planned for disposal or temporary storage at Kimba.

Let's hope this not the start of a new debate about "civilian waste" versus "defence waste". Toxic radioactivity doesn't differentiate.

Gregory Bannon | 11 August 2023  

Well done, Michele, and everyone involved in this triumph of humanity over stupidity. You've all done sterling work and future generations will thank you.

Susan Connelly | 12 August 2023  

Eureka Street has published, since 2015, about 20 articles on this proposed federal nuclear dump project, rightly seeing it as a serious national issue with serious implications for the environment and present and future generations. As author I can apologise for sometimes not defining the terms in every article to avoid repetition. This however doesn’t allow for new readers.
Just to be clear re some editorial change in the second paragraph of the article:
The nuclear dump project proposed for the Napandee site of Kimba on Eyre Peninsula SA, was proposed,* to be of two facilities.
One facility was to be a deposit facility for low level nuclear waste.
The other was to be a storage site for intermediate level nuclear waste.
The low level nuclear waste was often quoted by various Ministers as stored at 100 different sites across the nation. Some of this low level waste thus stored will be toxic for up to 100 years and was to be transported. Much of it thus locally stored however will decay on site – even in a few days so inevitably there will always be storage sites across the nation.
The long lived intermediate level, to be transported from ANSTO in Lucas Heights is intermediate level waste, toxic for 10,000 years. As the article says in another place this consists of over 90% of the waste (by radioactivity) and there is plenty of room for it to stay there. The plan was for this to be transported half way across the nation to be stored again in Kimba above ground for 100 years until a deposit place was eventually created.

Nuclear medical waste: there is certainly confusion regarding what does consist of. Nuclear medicine is used for medical imaging and to treat some cancers. It should not be confused with X-rays, CTscans, MRIs, radiotherapy or chemotherapy which are much more commonly used.
*The proposed project, both facilities, was finally abandoned by the federal government on August 10th 2023, ironically on the publication date of this last article.

Michele Madigan | 12 August 2023  

Thank you Michele for a great article about a great victory for the Barngarla people at Kimba in SA.

Congratulations must go to the environmentalists in the Australian Conservation Foundation, the SA Conservation Centre, the Greens and Friends of the Earth, the responsible farmers who opposed the plan and supporters of the Aboriginal movement who all worked so hard together over the last few years to achieve it.

And congratulations must go to Michele herself who has worked in Aboriginal solidarity since the 1970s and has been very active in this campaign as readers of the Eureka Street Magazine would know.

Further to the point that Patricia Boylen has made about Rowan Ramsey - the Federal member for the electorate of Grey which includes Kimba - according to an ABC News report, he said in response to the government's decision to drop the idea of the Kimba dump that it was "gutless" and "cowardly"!

"It's a cowardly act by a government that is prepared to sacrifice the interest of Australia at the alter (sic) of the Voice," he said.

It has to be said that his inappropriate comments typify the attitude of those politicians who were prepared to stampede the decision to locate a nuclear dump in a food producing region which has great significance for the local Aboriginal people without full consultation.

It is to be hoped that politicians in the future learn from this lesson. Yes, we do need such a dump, but it needs to be sited in an industrial and/or another polluted area that has safe and reliable transport systems but only after full consideration with local people.

Patricia's point about the AUKUS deal and dealing with the nuclear waste from that very unwise agreement should be noted.

Australian leaders should be following New Zealand's initiative and sign The Treaty on the Prohibition of Nuclear Weapons (TPNW) and ensure that we ban all nuclear warships and foreign bases in this country.

Andrew (Andy) Alcock | 12 August 2023  

Well done Michelle. Persistence and common sense prevails over filthy lucre.
You'd think they would have learned a few lessons after the Maralinga debacle.
Congratulations to you and your team.

Francis Armstrong | 16 August 2023  

I think it's important to note that this decision was not about the merits or otherwise of the proposal to establish a dump.

That wasn't what the court decided. Nor was the decision of the Court about 'the impact of a nuclear dump on international grain and fishery exports', nor 'the health of [the] community', nor the stupidity or otherwise of the proposal or the decision-maker, nor about AUKUS or The Voice, nor about the extent of prior consultation, nor about 'filthy lucre'.

It was rather, as Michele clearly states, about whether or not there was 'apprehended bias' in reaching the decision to proceed with the project, that is whether 'a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand'. (For a discussion of what 'apprehended bias' means see < https://www.austlii.edu.au/au/journals/FedLRev/2010/15.pdf >)

And this decision hasn't eliminated the need for a dump site to go go away. As Andy reminds us, 'we do need such a dump, ... sited in an ... area that has safe and reliable transport systems ... after full consideration with local people.'

Congratulations Michele on your full and factual reporting of this decision. I admire your dedication and enthusiasm to the cause!

Ginger Meggs | 21 August 2023  

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