Traditional owners opposing the federal government’s plan for a nuclear waste dump on their land in South Australia have had a major win, with a court ruling the facility can’t be built.
The Barngarla people were jubilant outside the federal court in Adelaide on Tuesday after justice Natalie Charlesworth said the commonwealth’s decision to build the dump near Kimba would be set aside.
Charlesworth said “apprehended bias” and “pre-judgment” by former Coalition resources minister Keith Pitt meant the court would uphold an application by the Barngarla Determination Aboriginal Corporation (Bdac).
“It’s about listening to the First Nations people,” the corporation’s chair, Jason Bilney, said after the ruling.
Bilney said the fight over their traditional lands had continued for 21 years – with the waste dump just the latest instalment after battling for native title for more than two decades. Bilney said his people would have fought for another 21 years if necessary.
“It’s about standing up and continuing that fight … to get us to where we are today,” he said.
“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.”
Pitt made a declaration in 2021 that a property called Napandee would be the site of the national radioactive waste management facility. The declaration meant the commonwealth acquired the land.
The plan was for low-level nuclear medical waste currently stored in hospitals and universities across the country to be permanently stored at the site along with intermediate-level waste, which would be stored until a separate facility was built for that material.
Bdac lodged an application for judicial review of the project in 2021. The court on Tuesday upheld its claim there was an “apprehension of bias” in Pitt’s decision.
In her reasoning, the judge pointed to comments made by Pitt and his predecessor, Matt Canavan, that suggested Napandee had been chosen in early 2020, before Pitt declared it in November 2021.
“The applicants’ case is that the minister [Pitt] made public statements that they allege might indicate that he might already have made up his mind,” Charlesworth wrote.
“His 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”.
The judge rejected the respondent’s argument that “a finding of apprehended bias 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”.
In June, Senate estimates heard the federal government had spent almost $14m in legal costs fighting Bdac, which Bilney labelled “disrespectful and hypocritical”.
A 2019 ballot of ratepayers found most supported the facility, but it excluded traditional owners who did not live in the council area. They held a separate ballot which unanimously rejected the proposal.
The Barngarla people argued if the two ballots were combined they would show a majority of affected people were against it.
Dave Sweeney, the Australian Conservation Foundation’s nuclear campaigner, said the government should keep all the waste at the Lucas Heights facility in Sydney.
The decision to build a new facility was “unnecessary and unpopular”.
“Now it’s unlawful,” Sweeney said. “What we want now is the Albanese government, [current resources minister Madeleine] King, and if necessary the prime minister to draw a line under the failed approach of decades and to have a new approach.”
Sweeney said extending interim storage at the Australian Nuclear Science and Technology Organisation at Lucas Heights was “a clear and credible alternative”.
King said she would review the ruling and it would be “inappropriate to make further comment” with the matter still before the court.
“Labor worked with the Barngarla people in the last term of parliament to ensure they secured the right to seek judicial review of the decision to acquire the facility site,” she said.
“The principle of judicial review is an important process that the Albanese government fully supports.”
Pitt said on Tuesday that he was “incredibly disappointed for the people of Kimba”. He told ABC TV the majority of those on the council roll wanted the facility and the piece of land chosen for the facility “did not have a native title”.
According to the industry and resources department, the Barngarla people are the traditional owners and the site sits within the Barngarla determination area but “native title has been extinguished over the freehold land of the project area”.
The Barngarla people say it contains significant cultural and heritage sites, including women’s sites. Elder Aunty Dawn Taylor said she was now “so happy for the women’s sites and dreaming on our country that are not in the firing line of a waste dump”.
Pitt claimed that without the facility the country’s ability to provide nuclear medicine was under threat.
