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‘David and Goliath’ – legal case, as indigenous group fights the Australian government to stop a nuclear waste dump on their traditional land

Stephanie Richards, 6 March 23,

Barngarla Traditional Owners’ fight to stop a nuclear waste facility being built near Kimba on South Australia’s Eyre Peninsula has reached the Federal Court, with the first substantive case hearing in Adelaide today.

They were supporting the Barngarla Determination Aboriginal Corporation, which has applied for judicial review in an attempt to thwart construction of the federal government’s planned radioactive waste storage facility at Napandee near Kimba.

“We’re fighting against injustices that have been happening to the Barngarla people regarding this waste dump in Kimba,” Barngarla Traditional Owner Harry Dare told InDaily outside court.

“We’re actually fighting for a seven sisters and women’s dreaming site and we’re fighting for a vote in our local governance.

“The Australian Government has given back our Native Title, but they haven’t given us a voice in those Native Title areas, so we’re fighting for equality and for all of Australia to be nuclear free.”

The Napandee site was selected by the former Morrison Government, with then Resources Minister Keith Pitt saying the government had secured “majority support” from the local community after more than “six years of consultation”.

But Barngarla Traditional Owners opposed the project and argued they were not included in the consultation.

During today’s hearing,  the Federal Court was told of how the decision to locate the dump at Napandee, near Kimba, played out.

After beginning the process to select the site through its administrative powers, the then Coalition Government changed tack and decided to legislate, partly to avoid delays through legal challenges.

However, when the legislation failed in the Senate, the government restarted the administrative process.

Counsel for the Barngarla told Justice Natalie Charlesworth that raised questions over whether Pitt, who ultimately named the Napandee location and who strongly supported the legislative approach, could properly carry out his administrative role.

“That, of itself, would excite a reasonable apprehension that the minister might be unable or unwilling to approach the matter with an open mind,” he said.

“Because, effectively, the decision had already been made.”

The court was also told that the Barngarla disagreed with the former government’s view that the dump had wide community support in Kimba and would also argue the decision on the dump was unreasonable given the lack of proper consultation with the Indigenous owners.

Given Pitt’s correspondence with the Barngarla people and his other statements, the impression that might arise was that consultation would largely amount to “matters around the edges”.

“In terms of identifying culture and the like in the implementation of the site, which had already been selected and to which the minister was committed,” counsel said.

With the case listed for several days, the federal government is expected to argue that much of the material to be relied on by the applicants is subject to parliamentary privilege.

The Barngarla launched their action in 2021 after being denied the right to participate in a community ballot to gauge local support for the Napandee site because many did not live in the Kimba council area.

The community ballot returned about 61 per cent in favour of the dump.

But when the Barngala conducted their own ballot among their community members, 83 voted no and none voted yes.

They argue they were denied the right to participate in a community ballot to gauge local support for the site, because many did not live in the Kimber council area.

Traditional Owner Linda Dare told protestors ahead of this morning’s hearing that the proposed location for the nuclear waste facility was near an important women’s site for the Barngarla people.

“It just seems to be that every time the government wants to put something it’s always around a women’s site,” she said.

“We need to fight as women around Australia to protect our sites.

“We need to say ‘no’ because it’s going to affect the waterways, not just in South Australia but everywhere.”

InDaily reported in September that the federal government was spending three times more than Barngarla Traditional Owners fighting the project in the Federal Court.

Information released to SA Greens Senator Barbara Pocock showed that between December and July, the government had spent $343,457.44 on legal fees.

That compares to the approximate $124,000 spent by the Barngarla Determination Aboriginal Corporation over the same period.

The Native Title group estimates that the total cost incurred by the federal government would run into the millions.

Barngarla Determination Aboriginal Corporation chairperson Jason Bilney told InDaily the judicial review was a “David and Goliath battle”.

“But, we’re dedicated. It took us 21 years to win our Native Title, come out of Native Title six months later and we’re fighting a nuclear waste dump on our country,” he said.

“What does that tell you about truth telling, the Statement From The Heart or the Voice?

“Our Voice isn’t being heard, truth telling isn’t being told and they’re going to break the First Nations’ heart – Barngarla – and put it (the nuclear waste dump) on our country.”

Bilney said Traditional Owners expected the Federal Court would take months to reach a decision, with hearings scheduled each day this week.

“It could take a year, but we would like it to have it sooner than later,” he said.

It comes after the Barngarla Native Title group last month won a separate Supreme Court bid to overturn former Premier Steven Marshall’s decision to allow a mineral exploration company to drill at Lake Torrens in the state’s outback.

At the time, Bilney said the group was buoyed by the win as they continued their legal fight to stop the Napandee nuclear waste facility from going ahead.

South Australian Labor has long called for Barngarla people to have the right to veto the project, with Premier Peter Malinauskas previously saying that the state government had expressed its views to the federal government.


March 6, 2023 - Posted by | AUSTRALIA, indigenous issues, Legal, wastes

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