‘Prejudged’ decision to establish nuclear waste dump at Kimba should be set aside, Federal Court rules

The $325m nuclear waste dump planned for Native Title land at Kimba has been cancelled by a judge who ruled a minister’s decision involved “bias” and “prejudgement”.

Harry and Linda Dare, who are opposed to the proposed nuclear waste dump at Kimba. Picture: Dean Martin

The decision to establish a nuclear waste dump on Native Title land at Kimba was affected by apprehended bias, a court has ruled – setting aside the controversial choice and cancelling the $325m project.

On Tuesday, the Federal Court upheld a complaint by the Barngarla people that former federal resources minister Keith Pitt had “prejudged” the issue when their land was chosen for the dump.

Justice Natalie Charlesworth said she was satisfied the Barngarla people had made out their complaint, during a long and expensive court case, over the protests of the government.

“The court’s view is that the only appropriate substantive and dispositive order is that the whole of the decision made is set aside,” she said.

Justice Charlesworth’s decision was greeted with tears and gasps of delight by the Barngala and their supporters, who embraced each other and their lawyers when court concluded.

The ruling means the dump will not go ahead but a legal question remains over the date from which it is cancelled.

Outside court, the Barngarla people and their lawyers were greeted with cheers and applause by their supporter. Picture: NCA NewsWire / Dean Martin

Outside court, the Barngarla people and their lawyers were greeted with cheers and applause by their supporters.

Barngarla Determination Aboriginal Corporation chief executive Jason Bilney hailed the decision as a victory “for all First Nations people”.

“This has been about standing up for what’s right, about truth-telling, about listening to First Nations people,” he said.

“This is symbolic … it’s very emotional.”

Lawyer, Nick Llewellyn-Jones, fronts the media, alongside Jason Bilney and Jonas Dare, as celebrations begin outside the court. Picture: NCA NewsWire / Dean Martin

In her judgment, Justice Charlesworth said the Barngarla people had challenged Mr Pitt’s declaration on five grounds.

She said three of those grounds had not been upheld by the evidence, while a fourth had been upheld but “did not materially affect” the declaration in a manner warranting it be overturned.

However, she said the “apprehension of bias” and “prejudgement” in Mr Pitt’s decision warranted “the whole of the declaration” being set aside.

Barngarla traditional owners Linda Dare and Daw Taylor with SA Aboriginal Affairs Minister Kyam Maher and Premier Peter Malinauskas.

The dump was first mooted in 2017, on a site nominated by the farmer who owned it, and has been opposed by the Barngarla Determination Aboriginal Corporation throughout.

In 2019, the Kimba community supported the dump in a ballot – but that vote excluded Native Title holders who lived outside the council region.

Two years later, the Morrison Government acquired 211ha of land at Napandee, west of Kimba, for the site, which was to store low-level waste from 100 other facilities.

In 2022, Premier Peter Malinauskas said he supported the Barngarla people but added his government had no power to intervene.

In March this year, the Barngala people asked the Federal Court to judicially review the declaration of Napandee as the facility, because of their exclusion from the ballot.

They argued the site was a significant place in a Barngarla Dreaming story and, if the story was broken, the people could not “keep that story going”.

In court on Tuesday, the Barngala people argued Justice Charlesworth’s ruling should be backdated to November 2021, when the dump site declaration was first made.

The government, however, argued it should only take effect from today (Tuesday).

While that debate in no way affects the cancellation of the dump, it will determine factors including court costs, grants of land title and payments made to land owners for the property.

Justice Charlesworth will hear further argument on that topic next month.

Outside court, Barngarla traditional owner Daw Taylor thanked “everyone for supporting us”.

Fellow traditional owner Linda Dare said it was also important that the declaration immediately prevented further work on the site.

“We knew they were digging holes around sites that are for Barngarla women and that artefacts were found, but we don’t know what happened to them,” she said.

“We’re just happy they can’t destroy all of our sites.”