Appeal dismissed

An appeal lodged with the Federal Court of Australia by the Barngarla people over the nuclear waste ballot has been rejected.

Kimba District Council received the judgement of the full bench of the Federal Court on Friday on the matter of the Barngarla Determination Aboriginal Corporation versus the council.


The racial discrimination case against the council was dismissed in July last year.

The Barngarla Determination Aboriginal Corporation (BDAC) was seeking the right to vote on issues that would affect Native Title land near the proposed waste management facility.

However the corporation have now ruled the decision "largely irrelevant" and said they were more concerned about the legislation to make Napandee the official waste facility site.

"The matter had progressed from the appeal before the decision came back, making the decision largely irrelevant," a spokesperson said.

"The government is now seeking to legislate directly to make Napandee the site, rather than using the present legislation to make a declaration under section 14.

"Making a declaration is how the law should operate, but this would allow for judicial oversight via judicial review.

"As a result of this, by the time the appeal came back, it had largely become irrelevant.

"The issue is that the government is trying to remove judicial oversight of this decision and remove a core legal right that both the Barngarla and the farming community had to seek judicial review.

"To put it bluntly, all Australians should be entitled to judicial review of government decisions.

"Specifically attempting to pass legislation to prevent this should be deeply concerning to all Australians.

"We can only assume that the government is doing this because it is worried about a challenge to its decision under section 14 of the existing act.

"Accordingly, we don't have considerable comment on the appeal, as it is presently no longer relevant to the issues...the issue is now much graver, and the removal of judicial review rights effects all Australians."

A statement from the Kimba District Council after the decision on Friday said they were pleased the judgment was in its favour.

"The council will make a further, more comprehensive statement relating to the judgment in the coming days," the statement read.

Chief executive officer Deb Larwood said comment will be made when they know how the matter will proceed.

"Council will not to making further comment until the period for filing an application for leave to appeal has passed and we know how the matter is likely to proceed," said Ms Larwood.

Parties wishing to appeal a judgment of the Federal Court must file a special leave application with the High Court of Australia.

Ms Larwood said the date for filing the application is 28 days after the judgement, or April 10.

"In the meantime, the council confirms that it will liaise with the Federal Department for Industry, Science, Energy and Resources in relation to the National Radioactive Waste Management Facility Project."

A spokesperson for the Department of Industry, Science, Energy and Resources said the decision delivers "certainty" to the Kimba and broader community.

"Technical studies demonstrate that Napandee will safely and securely manage radioactive waste, and Kimba is a community that broadly supports the project and the benefits it will bring," they said.

"The department will continue to work to ensure the Barngarla are consulted and heard with respect to the facility.

"The department has actively sought the views of Traditional Owners and will continue to engage with them on matters of heritage and to provide opportunity for employment and economic benefit.

"Furthermore, future regulatory processes and the current Senate inquiry submission process provide further opportunities for people to have their say."

The spokesperson said future processes and the current senate inquiry are ways for people to have their say.

To make a submission to the senate inquiry, visit before the end of March.

This story Appeal dismissed first appeared on Eyre Peninsula Tribune.