‘Apprehended bias’: Court blocks SA nuclear waste dump

A controversial nuclear waste facility planned for South Australia’s Eyre Peninsula will not go ahead in its current form after Traditional Owners won a legal challenge to stop the federal government’s construction.

The Federal Court ruled in favor of the Barngarla Determination Aboriginal Corporation on Tuesday, setting aside the declaration of a site at Napandee near the town of Kimba for the National Radioactive Waste Management Facility.

In November 2021, the former Coalition government acquired the site to build the facility intended to become the single location for the disposal of Australia’s low level nuclear waste and a temporary storage location for intermediate level waste from applications like scientific research and nuclear medicine.

Existing radioactive waste is currently kept at the Australian Nuclear Science and Technology Organisation’s (ANSTO) Lucas Heights reactor in Sydney, with another 100-plus locations across Australia also being used for storage.

Image: Facebook/Barngarla community group

But the local Barngarla people, who hold Native Title rights over the site, applied for a judicial review of the government’s decision in December 2021, arguing it is a dreaming site and that they were excluded from a community vote run by the Australian Electoral Commission in 2019.

In the months since, the Barngarla Determination Aboriginal Corporation and the Australian Greens have been lobbying the Albanese government to overturn the declaration by former resources minister Keith Pitt and to halt preparatory works, which began in November last year.

More than $160 million in funding was also provided in the May federal Budget for the facility, including for “technical, design, regulatory and governance activities, and community engagement”. A total of $476.4 million has been allocated for nuclear activities over the next seven years.

On Tuesday, Justice Natalie Charlesworth set aside the decision, finding that the former minister’s declaration of the site was affected by ‘apprehended bias’. An error of law was also found, but it was concluded to not have a “material effect on the outcome of the declaration, according to the ABC.

Environmental groups have welcomed the decision, with Australian Conservation Foundation nuclear free campaigner Dave Sweeney calling on the government to “halt this failed plan and adopt a new approach”.

“This decision is a red light for Kimba – this plan cannot be further advanced. The plan is based on false assumptions and would deliver sub-optimal outcome. This waste lasts longer than any politician and it needs to be responsibly managed,” he said.

In a statement following the Federal Court decision, Resources minister Madeleine King acknowledged the finding and said she would “now review the decision in detail”, noting that Labor had worked with the Traditional Owners to seek judicial review while in opposition.

“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. The principle of Judicial Review is an important process that the Albanese Government fully supports,” she said.

Do you know more? Contact James Riley via Email.

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