Examining the impact of the legal decision against the planned Kimba nuclear waste dump.

Here’s what we know about the Kimba nuclear storage facility decision, By Josephine Lim ABC News 18 Jul 23

This week the federal court ruled in favour of traditional owners who have been fighting against the
development of a nuclear waste facility

The federal government had selected a site in South Australia’s Eyre Peninsula to store low and
intermediate level radioactive waste, but the court’s decision has left the future of the project uncertain.

The uncertainty extends far beyond the court’s decision as the facility will never see the light of day due to i t s c o m p l e t e a n d i n h e r e n t unsuitability which includes the environmental implications and the lack of compliance with international standards and prescriptions relating to nuclear installations and their .safety

Here’s what we know so far. What did the original proposal entail?

In November 2021, Napandee near the town of Kimba, was acquired to be the storage facility for low and
medium-level nuclear waste.

The 211-hectare property was chosen from a shortlist of three sites, including the outback town of
Lyndhurst and Wallerberdina, a property in the northern Flinders Ranges

At the time, Coalition resources minister Keith Pitt said the site would create 45 permanent jobs in
the Kimba community.

Yesterday, he said on ABC’s Afternoon Briefing that he was “incredibly disappointed for the
people of Kimba” following the court’s findings.

“The piece of land on which this was going to be cited did not have a native title. It is a dryland wheat
farm,” he said.

He said more than 60 per cent of the local community supported the project, citing a postal ballot that only local ratepayers were allowed to vote in.

Why did the Barngarla people fight the plan?

The Barngarla people have a sacred site for women near Kimba, which they fear a facility would destroy.”The Seven Sisters Dreaming is through that area,” Barngarla woman Dawn Taylor said.
“But the Seven Sisters Dreaming means a lot to all of us as women, in each tribe, throughout the country.”

The Barngarla Determination Aboriginal Corporation (BDAC)launched the challenge in the Federal Court in a bid to stop the site from going ahead altogether.

BDAC chairman Jason Bilney said he felt “very emotional” winning a “David versus Goliath” battle.
“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,” he said outside court.

What did the court find?
The Federal Court upheld a complaint by the Barngarla people on the ground there was apprehended bias in the decisionmaking process by former federal minister Keith Pitt in selecting the site

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”

Lawyer for the Barngarla people, Nick Llewellyn-Jones, said findings of apprehended bias against a
minister were “very rare” and the judgement was significant in terms of legal precedent.
“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.

“What we’ve had here is a finding of apprehension of bias, we haven’t reviewed the decision fully, but it’s
obviously got some consequence in terms of the conduct the minister did at the time and it will have some authority value in terms of that as well

“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.”

Justice Charlesworth also found there was an error of law, but concluded it did not have a “material effect” on the outcome of the declaration of the site.

How has the government responded?
Federal Labor Minister for Resources Madeleine King issued a statement that the court’s decision will be reviewed in detail but declined to comment further.
“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

That is absolutely untrue since the Barngarla people had to continue with the review application and the enabling legislation as eventually agreed to by Labor was still well short of what was requested and expected of which I have personal knowledge as among other things I had many discussions with various members of parliament and had assisted in drafting an appropriate amendment to the legislation

When the legislation was eventually passed in the Senate I contacted Minister King who was then shadow minister for resources and explained that it was a totally unacceptable piece of legislation which she strongly and quite ignorantly refuted.
I had previously drafted an amendment to the legislation while it was still at the bill stage in the Senate under which the government and the responsible ministers would have been required to adhere completely to the codes and standards and the prescriptions of the International Atomic Energy Agency (IAEA) which was not accepted

Had this amendment been adopted than none of the present litigation with its accompanying acrimony would have been necessary since IAEA would have ensured that the government completely complied with and adhered to its standards and prescriptions.

“The principle of judicial review is an important process that the Albanese Government fully supports.”

The best way to support this application for a review would have been to agree to the review without
any contest. An appeal by the government will be an absolute lie to this proposition.

What have those in favour of the waste facility said?
Kimba farmer Kerri Cliff said the court outcome was ” pretty devastating for the majority of the
community” and expressed concerns about the economic future of the town.

“It’s a decision being made about Kimba, but not by the people that live here,” she said.
Aside from jobs at the facility, an Australian Government economic impact assessment report found the
project would have brought over $95 million to Kimba and the Flinders Ranges in the first 33 years.

What happens now?
The future of the project is in severe doubt and legal costs are also yet to be determined. The federal government is yet to say whether it would make an appeal against the court’s decision or look at a different location to store nuclear waste.

Rowan Ramsey told ABC Radio Adelaide’s Jules Schiller that the Australian Radiation Protection and Nuclear Safety Agency said that there would be no more room to store nuclear waste at Sydney’s Lucas Heights site “beyond 2028”

“Given that now the government has to find a new site and build a new facility in five years, you may as well be whistling into the wind,” Mr Ramsey said.

But Australian Conservation Foundation campaigner Dave Sweeney said 95 per cent of radioactive waste had been storedsecurely at the Lucas Heights facility and that “material can remain there securely for decades to come”.
He said he hoped the federal government could use this decision to discuss how to better manage nuclear waste in Australia. “It’s a result that will hopefully draw a line under decades of mismanagement of radioactive waste and inject some responsibility, some respect and some recognitioninto future discussions,” he said

“It’s long overdue now, and particularly against a context of AUKUS nuclear submarines and speculation about domestic nuclear power, we need to be serious and stop playing politics and stop looking for a vulnerable community to dump radioactive waste in.”

Australia must far better manage its nuclear waste This lack of proper management stems from the ignorance and incapacity of the federal government from ministerial level through its various departments and agencies failing to accept or acknowledge the international requirements for that
purpose
In conclusion I can only hope that t h e m e m b e r s o f t h e K i m b a community who feel aggrieved by the court’s decision and are seeking the establishment of the facility as an alternative to the district’s economic growth would actually be bitterlydisappointed if that were to occur

In any case, they should realise that the government is attempting to create a false economy which will
not survive and is based on the wholly unsuitable plan for the facility that will not get the necessary approvals for its establishment.

While it was suggested in an interview on Sky News this morning that many people had left the Kimba
district in the past four years this I understand stems from them being unconvinced and even fearful of the facility’s presence.

If the government as the proponent of the facility were prepared to fund a proper and independent expert review of its plans for Kimba then I am sure that those people will be shocked at the result.

July 20, 2023 - Posted by Christina Macpherson | Federal nuclear waste dump