Barngarla Traditional Owners launched a legal challenge to the Federal Government’s plans for a radioactive waste facility on their land, near Kimba on South Australia’s Eyre Peninsula.

Barngarla Determination Aboriginal Corporation chairman Jason Bilney told National Indigenous Times that the Barngarla people fought for 21 years to have their Native Title rights recognised and “one week later began fighting a nuclear waste dump” on their own land.

“We were excluded from the vote because of white man’s terminology regarding ‘rateable property’. We had to organise our own ballot and it came back with a unanimous ‘no’. Combined [with the government’s ballot] you have only 43.7% of people in favour of the plan.

“Minister Canavan, Minister for Resources and Water Keith Pitt’s predecessor, said he would not put a waste dump anywhere if it didn’t have community support – 65% support,” he said.

Mr Bilney said “all people have the right to question the government’s processes”.

“They tried to take out the right to judicial review. We fought for 15 months, lobbying in Canberra to get the support of Labor, the Greens, One Nation to get that right put back in, and the government’s knee-jerk reaction was to acquire the land and go ahead.

“They consulted with other Indigenous groups, but not the Native Title holders. They have not consulted with the Traditional Owners. It was a classic example of divide and conquer.”

He said both Minister Canavan and Minister Pitt had consistently said they would not go ahead with the waste dump without “broad community support”, and the legal challenge aimed at holding them to account for a flawed process.

An online fundraiser has been established to help support the legal campaign.

Australian Conservation Foundation campaigner Dave Sweeney told National Indigenous Times that Minister Pitt’s decision and chosen process were contrary to the UN Declaration on the Rights of Indigenous People, which requires that “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent”.

The legal challenge will target the government’s planned location for Australia’s first dedicate nuclear waste facility.

“This is a very significant proposal… From our perspective it requires the highest degree of scrutiny and rigour and it has not had that,” said Mr Sweeney.

“The consultation process has been highly curated and designed to deliver a stamp of approval, and in doing that it has been deficient.

“The Barngarla Traditional Owners were not included in the government’s community ballot. They then commissioned a private company to run a community ballot and it was unanimously opposed to the Federal plan. If you add the votes from that ballot to the no votes from the government-run ballot, opposition is well over 50 per cent.”

“Minister Pitt spent a year trying to amend the legislation that makes this facility possible in order to remove the right of the Barngarla Traditional Owners, and others, to judicial review and their day in court. Ultimately, he reinstated that right in the legislation to satisfy Labor, who would have opposed the legislation otherwise.

“So, he cut the Barngarla Traditional Owners out of the ballot and he tried to remove their right to judicial review.”

Mr Sweeney said the process was not in keeping with international standards.

“And it is also significantly out of step with Australian community views and expectations. It is simply unacceptable to be siting a facility that involves waste, some of which will be dangerous for thousands of years, on Aboriginal people’s land without out their consent.”

Mr Sweeney said the “rubber stamp” process deployed by the federal government has been “unnecessarily divisive”, and the plan itself is fundamentally flawed.

“The plan continues the mistake made by multiple governments now where it applies the same management approach to two very different waste streams. Low level waste has to be isolated from people and the environment for up to 300 years. Intermediate waste needs to be isolated for up to 10,000 years. Part of the solution is to de-couple the management of the two different waste streams.

“In relation to intermediate waste, 95% of it is securely stored where it was made, at the ANSTO [Australian Nuclear Science and Technology Organisation] site in Sydney [Lucas Heights]. That is the best place for it – high level security, monitored 24 hours a day, the highest emergency response capacity… the home of Australian nuclear expertise.

“One thing that has happened this year that is a positive is the Federal Government allocated almost $60million to upgrade and extend the storage of intermediate waste at ANSTO, approved by Parliament. ANSTO, the public works committee and ARPANSA [Australian Radiation Protection and Nuclear Safety Agency] have all said that the intermediate waste can be stored for decades to come at Lucas Heights.

“If you can store the worst stuff there for decades, that gives us the time to bring people to the table, to discuss this, and to ask the question Minister Pitt has consistently ignored, what are we going to do with this waste in the long term? There is no long-term plan, but sometime in the next 100 years a future Federal government will remove it (from the proposed Kimba site).

“If we have the capacity to secure it [at Lucas Heights], why move it twice? They are building a new storage facility at Lucas Heights now. Why double handle it? It is against the explicit wishes of the Traditional Owners.”

Mr Sweeney said the Australian Conservation Foundation is calling for the Federal government to “stop the politics of ego, the politics of division and accept that this is a significant issue and that the Traditional Owners don’t want it, that there is a proven and prudent alternative, and that we need to start the process of addressing what we are going to do with this stuff in the long term”.

Minister Pitt told National Indigenous Times that the “declaration at Kimba was a significant step in the establishment of this crucial piece of national infrastructure that provides a much needed solution for Australia’s nuclear medicine industry and our nuclear research capabilities that will benefit all Australians throughout their lifetime”.

He did not directly respond to questions, including the matter of why the Barngarla Traditional Owners were excluded from the government’s ballot.

In a previous statement, Mr Pitt claimed that without “a facility like this, we can’t enjoy the benefits from vital nuclear medicines on an ongoing basis”.

“This facility will underwrite Australia’s nuclear medicine supplies… This is not to say there are not some people with concerns and I will work with them to resolve those issues wherever possible, as we move into the detailed design, delivery and operational phases.”

By Giovanni Torre