The case for a judicial review brought by the Barngarla people opened on Monday, with the Federal Court in Adelaide told of how the decision to locate the dump at Napandee, near Kimba, played out
After beginning the process to select the site through its administrative powers, the then coalition government changed tack and decided to legislate, partly to avoid delays through legal challenges.
However, when the legislation failed in the Senate, the government restarted the administrative process.
Counsel for the Barngarla told Justice Natalie Charlesworth that raised questions over whether former resources minister Keith Pitt, who ultimately named the Napandee location and who strongly supported the legislative approach, could properly carry out his administrative role.
"That, of itself, would excite a reasonable apprehension that the minister might be unable or unwilling to approach the matter with an open mind," he said.
"Because, effectively, the decision had already been made."
The court was also told that the Barngarla disagreed with the former government's view that the dump had wide community support in Kimba and would also argue the decision on the dump was unreasonable given the lack of proper consultation with the Indigenous owners.
Given minister Pitt's correspondence with the Barngarla people and his other statements, the impression that might arise was that consultation would largely amount to "matters around the edges".
"In terms of identifying culture and the like in the implementation of the site, which had already been selected and to which the minister was committed," counsel said.
With the case listed for several days, the federal government is expected to argue that much of the material to be relied on by the applicants is subject to parliamentary privilege.
Before Monday's hearing began, members of the Barngarla community and their supporters gathered outside the court, vowing to continue the fight no matter the result of the court proceedings.
"If it goes against the government, they are going to appeal it. If it goes against us, we are going to appeal it," Elder Harold Dare said.
"We are going to appeal it as long and as hard as we can.
"It's not just about the Barngarla, it's about all of Australia and ultimately the world.
"We're fighting for the protection of a sacred Aboriginal women's site. It's about the respect we are showing to our women's sites."
The Barngarla launched their action in 2021 after being denied the right to participate in a community ballot to gauge local support for the Napandee site because many did not live in the Kimba council area.
The community ballot returned about 61 per cent in favour of the dump.
But when the Barngala conducted their own ballot among their community members, 83 voted no and none voted yes.
The coalition government's decision to build the dump at Napandee came in November 2021, when it announced it had acquired 211 hectares of land with the proposed facility subject to heritage, design and technical studies.
The vast majority of nuclear waste produced in Australia is associated with the production of nuclear medicine.
The Barngarla native title area covers more than 34,000 square kilometres on Eyre Peninsula, including the town of Kimba.
