Coalition government claimed dump site had support of local community

When the previous coalition government announced a national nuclear waste dump would be built on a 211-hectare farm near Kimba in South Australia, it proclaimed it had the support of local people.

The dump would take low-level radioactive medical waste and temporarily store intermediate-level nuclear waste from Sydney's Lucas Heights reactor until a permanent location was found.

In 2019 the government announced that a ballot of local council ratepayers had found that most supported it, with 452 voting yes and 282 voting no – meaning that 62 per cent were in favour.

Barngarla people hold ballot on proposed nuclear waste dump

However, the government ballot did not include renters, or family or staff of ratepayers, or the local traditional owners, the Barngarla people, who were not ratepayers.

The Barngarla held their own ballot, which unanimously rejected the dump, saying the site held sacred sites and was culturally important.

The Barngarla people hold native title in a conservation park less than one kilometre from the proposed waste dump, but not at the dump site itself.

Failure to consult traditional owners on location of dump site

The Barngarla challenged the government's decision in the Federal Court, asserting that they possess statutory rights to the land under Aboriginal heritage laws, that they are the traditional owners of the land, and that they were not consulted about the selection of the site for the nuclear waste dump.

In July 2023, after a lengthy legal battle, Justice Natalie Charlesworth set aside the Commonwealth's decision to build the Kimba nuclear waste dump. She said there was "apprehended bias" and "pre-judgement" by Minister Pitt. (Please see Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809.)

The judge said public comments by ministers indicated that the location of the site near Kimba had been decided years earlier by the coalition government, which had a "dismissive attitude" to opponents, including the Barngarla people.

The coalition government's failure to consult the traditional owners was among the reasons why the Federal Court overturned the decision. (Please see Traditional Owners win court case to stop nuclear waste dump in South Australia, The Guardian, 18 July 2023.)

All sectors of community must be consulted

The ruling did not judge the rights and wrongs of nuclear waste dumps as such. However, what it demonstrated is that any government will need to consult and gain approval from all sectors of a local community before it can impose such a facility on it.

The judgment also showed that governments cannot decide on a site before even consulting the local community.

As Professor Ian Lowe of Griffith University wrote, the "decide and defend" model – where a government decides to put radioactive waste somewhere and then attempts to defend it against the local community – has not worked anywhere. (Please see The Kimba nuclear waste plan bites the dust. Here's what went wrong and how to do better next time, The Conversation, 11 August 2023.)

Future prospects for storage of nuclear waste

Unknown tonnes of radioactive material and soil are buried at remote Maralinga in South Australia, where the British tested nuclear weapons in the 1950s and 60s. Lucas Heights now stores its own nuclear waste and radioactive medical waste is stored in hospitals around the country.

There is a need for a safe national nuclear waste dump, especially as Australia will eventually have to store high-grade enriched waste from the AUKUS nuclear-powered submarines.

Such a nuclear waste facility will need to last thousands of years before it degrades to safe levels. (Please see FACT SHEET: Trilateral Australia-UK-US Partnership on Nuclear-Powered Submarines, The White House, 13 March 2023.)

The Labor government says it won't appeal the Kimba decision. Speculation now centres on defence department land at Woomera in South Australia as a possible site for a future high-grade nuclear waste dump.

Dion Bull
Planning and environment
Stacks Law Firm

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