by Dr Jim Green *
Bipartisan efforts by successive federal governments to impose a national nuclear waste dump on the land of Barngarla Aboriginal Traditional Owners in South Australia have been upended by a Federal Court decision in favour of the Barngarla people.
In late 2023, Australians will have their say in a referendum about whether to change the Constitution to recognise the First Nations of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
The Voice would be an independent and permanent advisory body giving advice to the Australian parliament and government on matters that affect the lives of First Nations peoples.
Sadly, the federal Labor government ‒ at the same time as it champions the Voice ‒ has continued with the previous government’s plan to establish a national nuclear waste dump near Kimba in South Australia (SA) despite the unanimous opposition of the Barngarla Traditional Owners.
However that plan came a cropper on Tuesday, July 18. Barngarla Traditional Owners sought to revoke the nomination of the dump site and the Federal Court agreed, arguing that the nomination of the dump site was infected by ‘apprehended bias’ and ‘pre-judgement’.
Barngarla Elder Aunty Dawn Taylor said: “I am so happy for the women’s sites and dreaming on our country that are not in the firing line of a waste dump. I fought for all this time for my grandparents and for my future generations as well.”
Jason Bilney, Chairperson of the Barngarla Determination Aboriginal Corporation, said: “The Barngarla fought for 21 years for Native Title rights over our lands, including Kimba and we weren’t going to stop fighting for this. We have always opposed a nuclear waste dump on our country and today is a big win for our community and elders.”
The Kimba site has been targeted for a dump since 2015. In 2021, the conservative Coalition government formally nominated the Kimba dump site, and the Labor government continued with the plan since winning the May 2022 election.
Barngarla Traditional Owners were excluded from a so-called ‘community ballot’ by the Coalition government. The results of an independent, professional ballot of Barngarla Traditional Owners ‒ which found absolutely no support for the proposed dump ‒ were ignored.
Violation of human rights
Federal parliament’s Joint Committee on Human Rights unanimously concluded in an April 2020 report that the government was violating the human rights of Barngarla people. Even the Coalition members of the committee endorsed the report. But the Coalition government continued to ignore the human rights of the Barngarla people.
The Coalition government also tried to pass legislation which would deny Barngarla Traditional Owners the right to challenge the nomination of the Kimba dump site in the courts. However the draft legislation was blocked by Labor, minor parties and independent Senators.
It was expected ‒ or at least hoped ‒ that the incoming Labor government would abandon the controversial dump proposal after the May 2022 election. But Labor pressed ahead with the Kimba dump proposal.
I fought for all this time for my grandparents and for my future generations as well.
Labor’s position is that Barngarla Traditional Owners can challenge the dump plan in the courts. And that is what happened: the Barngarla Determination Aboriginal Corporation launched a legal challenge against the previous government’s nomination of the Kimba dump site and the Labor government continued to fight the case.
The government might yet appeal the July 18 decision in favour of the Barngarla people. However it seems likely that the plan for a nuclear dump on Barngarla country will instead be abandoned.
There are at least two problems with Labor’s position. Firstly, the government has vastly greater resources to contest a legal challenge. Indeed the government has spent A$13 million fighting Barngarla Traditional Owners in the Federal Court.
Barngarla Traditional Owners haven’t even spent half a million dollars; and needless to say they have many pressing demands on their limited resources. There is no other example in recent Australian history of this level of legal attack on an Aboriginal group.
Secondly, the relevant laws are stacked against the interests of Traditional Owners. In 2007, the conservative Coalition government passed legislation ‒ the Commonwealth Radioactive Waste Management Act ‒ allowing the imposition of a nuclear waste dump on Aboriginal land with no consultation or consent from Traditional Owners.
At the time, Labor parliamentarians described the legislation as “extreme”, “arrogant”, “draconian”, “sorry”, “sordid”, and “profoundly shameful”.
But when the Labor government amended the legislation in 2012 ‒ and renamed it the National Radioactive Waste Management Act ‒ the amendments were superficial and still allowed for the imposition of a nuclear waste dump with no consultation or consent from Traditional Owners.
Regardless of the Federal Court’s decision, the plan to impose a nuclear dump despite the unanimous opposition of Barngarla Traditional Owners is immoral.
It contradicts the spirit of the Voice to Parliament currently being championed by the Labor government. Jayne Stinson, Chair of the SA Parliament’s Environment, Resources and Development Committee, said:
“In this day and age, when we’re talking about Voice, Treaty and Truth, we can’t just turn around and say, ‘Oh, well, those are our values but in this particular instance, we’re going to ignore the voice of Aboriginal people’.
“I think that’s just preposterous and it’s inconsistent with what most South Australians would think.”
The plan to dump on Barngarla country makes a mockery of Labor’s professed support for the United Nations Declaration on the Rights of Indigenous Peoples, which states 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”.
There is no informed consent from Barngarla Traditional Owners ‒ there is informed, unanimous opposition.
Dr. Susan Close, now the Labor Deputy Premier of South Australia, said in 2019 that it was a “dreadful process from start to finish” that led to the nomination of the proposed Kimba dump site and that SA Labor is “utterly opposed” to the “appalling” process which led to Kimba being targeted.
Dr. Close noted in a 2020 statement, titled ‘Kimba site selection process flawed, waste dump plans must be scrapped’, that SA Labor “has committed to traditional owners having a right of veto over any nuclear waste sites, yet the federal government has shown no respect to the local Aboriginal people.”
And in the wake of the July 18 Federal Court decision, Dr. Close has called for her federal Labor colleagues to abandon the Kimba dump proposal once and for all.
Sadly, federal Labor has form on these issues. In February 2008, Labor Prime Minister Kevin Rudd highlighted the life-story of Lorna Fejo ‒ a member of the stolen generation ‒ in the historic National Apology to Aboriginal People in Parliament House. At the same time, the Rudd government was attempting to impose a nuclear waste dump on Fejo’s country in the Northern Territory. She said:
“I’m really sad. The thing is ‒ when are we going to have a fair go? Australia is supposed to be the land of the fair go. I’ve been stolen from my mother and now they’re stealing my land off me.”
Federal Labor’s nuclear racism is disgraceful and it diminishes all Australians. And Labor’s nuclear racism is always supported by the conservative Coalition parties (who are arguing for a ‘no’ vote in the upcoming referendum on a Voice to Parliament).
But nuclear racism has always met with resistance. Remarkably, community campaigns led by Aboriginal people have stopped five nuclear dump proposals since the turn of the century.
Plans for a national nuclear waste dump in SA have been defeated in 2004, 2019 and 2023 (touch wood), a planned national nuclear dump in the Northern Territory was defeated in 2014, and a plan to turn SA into the world’s high-level nuclear waste dump was defeated in 2016.
Three of the five successful campaigns involved legal challenges that made it much more difficult for governments to override community resistance.
The federal Labor government should abandon the Kimba dump site and apologise for attempting to foist a dump on Barngarla country despite the unanimous opposition of traditional owners.
Right of veto
The federal Labor government should also adopt SA Labor’s policy that traditional owners should have a right of veto over any proposed nuclear dumps.
That would give traditional owners across the country some confidence that their voice will be heard as the government progresses plans to store and dispose of waste arising from nuclear-powered submarines in the coming decades.
Finally, Labor must commit to amend the shameful, racist National Radioactive Waste Management Act.
Barngarla: Help us Have a Say on Kimba (facebook)
* Dr. Jim Green is the national nuclear campaigner with Friends of the Earth Australia.