National Radioactive Waste Management Facility notice of intention to declare

NATIONAL RADIOACTIVE WASTE MANAGEMENT FACILITY SITE SELECTION

Comments given to the Minister under s 18(2)(d) of the National Radioactive Waste
Management Act 2012 (Cth) by a person with a right or interest in the land in response
to an invitation made by the Minister under s 18(1)(b) of that Act on 12 August 2021

From: Barngarla Determination Aboriginal Corporation RNTBC ICN 8603:
1. in its own right;
2. on behalf of the common law holders of native title within the Barngarla
determination area; and
3. on behalf of the traditional owners of Aboriginal heritage at and near the
Napandee site.

Address: C/o- Level 11, 431 King William Street ADELAIDE SA 5000

Email: barngarlacontact@gmail.com

Date: 20 October 2021

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1. The Napandee site should not be declared under s 14(2) of the National Radioactive
Waste Management Act 2012 (Cth) (Act) as being selected as the site for a ‘facility’
under the Act.

2. Alternatively, no decision should be made until:

2.1 a comprehensive and complete on-ground and in-person Aboriginal cultural
and heritage assessment has been undertaken in conjunction with the
Barngarla people; and

2.2 the findings of that assessment have been made public;

2.3 genuine public consultation with the whole of the affected community (including
all Barngarla people) has been undertaken in light of those findings; and

2.4 the decision is demonstrably made afresh without any prejudgment in favour of
the Napandee site, including by delegation to an independent person with no
prior involvement who is not beholden to any political master.

3. These comments are explained in detail below.

4. Before turning to the detail of the comments we note from the outset that we (the
Barngarla people) in 2019 previously provided detailed comments to then-Minister
Canavan about any proposal to select Napandee. Those comments are Attachment
1 hereto, and we repeat them.

Rights and interests in the Napandee site

5. The Barngarla people hold native title within the ‘determination area’ identified in Croft
on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2)
[2016] FCA 724 and elsewhere. A complete list of parcels can be located in the
Determination. We attach three maps, one which shows the Determination boundaries,
one which is zoomed out that shows part of the surrounding area with the Napandee
site approximately marked on it. The second map, due to being zoomed out, does not
show a number of smaller parcels of native title. Accordingly, we also attach a third
zoomed in map of the town of Kimba, to show a number of smaller native title parcels
in that town, so it is clear that we have a number of native title parcels in the area, not
just one. The maps are attached as Attachment 2.

6. The Barngarla Determination Aboriginal Corporation RNTBC ICN 8603 (BDAC) is the
registered native title body corporate for the native title holders. It holds that native title
as agent for the ‘common law holders’ (i.e. the Barngarla people).

7. The Barngarla people are the traditional owners of that area under their traditional laws
and customs. Their traditional laws and customs apply to and within the whole of that
area.

8. BDAC has authority to make these comments on behalf of those traditional owners.

9. Native title covering the Napandee site has been extinguished; however, that site is
still covered by Barngarla traditional laws and customs.

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10. Native title also exists nearby. For example, our rights and interests are enjoyed and
exercised within the Pinkawillinie Conservation Park which lies less than 1 km to the
south of the Napandee site.

11. Barngarla native title surrounds all approaches to the Napandee site. Radioactive
waste destined for the Napandee site will necessarily be transported over, or
immediately next to, Barngarla native title land.

12. Aboriginal heritage exists on (and near) the Napandee site, including significant
Aboriginal sites associated with the important Seven Sisters Dreaming, for which
Barngarla people are the traditional owners: see the report of Dr Dee Gorring which is
Attachment 3 and the statutory declaration of Dawn Taylor which is Attachment 4

13. Aboriginal heritage is protected by the Aboriginal Heritage Act 1988 (SA). However,
such protection will, in relation to construction and operation of the facility, be removed
by sections 23 and 24 of the Act if the Napandee site is selected.

14. Accordingly, the Barngarla People as native title holders and traditional owners, and
BDAC as their sole authorised representative, have rights and interests in the
Napandee site because of:

14.1 their traditional laws and customs applying to the site, and their spiritual and
cultural connection to the site; and

14.2 being traditional owners of Aboriginal sites, objects and remains at the
Napandee site.

15. The Department makes this observation,1 with which we agree:

“… the Barngarla People hold Native Title in parts of the region surrounding the
[Napandee and Lyndhurst] sites[.] They also have an ongoing cultural heritage
connection with the land more generally in the Barngarla Determination area[.]
BDAC is also the peak body for the Barngarla People for matters relating to
land, culture, heritage, language and Native Title.”

Opposition to selection of Napandee

16. The Barngarla People do not support the facility being located at Napandee. Nor do
they support any other site within or near the determination area shown in
Attachment 2.

17. As explained in detail below, our opposition is based upon:

17.1 the absence of ‘broad community support’, being the Government’s committed
minimum requirement for establishment of the facility;

17.2 the opposition of all Barngarla people;

17.3 the deliberate exclusion of the Barngarla people from public consultation;

1 Community Sentiment — National Radioactive Waste Management Facility March 2020, Dept of
Industry, Science, Energy and Resources, p 42.

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17.4 the impact of any facility upon Barngarla Aboriginal heritage and culture,
including future protection of that heritage and culture;

17.5 the absence of any comprehensive and complete on-ground and in-person
Aboriginal cultural and heritage assessment of the Napandee site undertaken
in conjunction with the Barngarla people;

17.6 apparent bias by reason of pre-determination of the Napandee site well in
advance of the s 18 notice given on 12 August 2021.

Absence of community support

18. The previous Minister gave assurances, since repeated by the Department, that no
site would be selected for the facility in the absence of ‘broad community support’.

19. The Government recently restated this commitment in Parliament during the second
reading of the National Radioactive Waste Management Amendment (Site
Specification, Community Fund and Other Measures) Bill 2020 on 21 June 2021 , as
Senator Anne Ruston, who had carriage of the Bill on behalf of the Government, stated
that the ‘government's position is clear: the facility will not be imposed on an unwilling
local community.’ In addition to this more recent comment, the Department put it in
these terms:2

Successive ministers have made a commitment that the facility will be
established in a community where there is broad community support.

20. The Government gave effect to that commitment when excluding the Wallerberdina
site on the basis of a majority ‘no’ vote.

21. The Barngarla people have relied on this ongoing commitment and continue to do so.
To the best of our knowledge, so too has the community of Kimba and surrounds
relied upon this assurance.

22. ‘Broad community support’ does not mean ‘a majority of respondents to a postal poll of
owners of rateable real property within the DC Kimba local government area’ (Council
Poll). However, that is the primary ‘survey’ upon which the Government has relied
upon to assert ‘broad community support’.3

23. Even an overwhelming ‘yes’ vote in that process (which there was not) cannot and
does not demonstrate broad community support.

24. Five key problems preclude use of the Council Poll to demonstrate ‘broad community
support’:

24.1 LGA boundaries do not define ‘community’ let alone the ‘broad community’
within which the facility would be established if the Napandee site is selected;

2 Community Sentiment — National Radioactive Waste Management Facility March 2020, Dept of
Industry, Science, Energy and Resources, p 5.
3 This is demonstrated both by exclusion of Wallerberdina on the basis of the ‘no’ vote in the equivalent survey, and by Minister Pitt’s press release ‘Minister issues intention to declare Napandee
site for National Radioactive Waste Management Facility’ dated 11 August 2021 in which it is stated
that, “In Kimba, there is broad community support for the project” before four surveys (none of which
involved the Barngarla people) are cited in support of that statement.

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24.2 the Poll did not distinguish between the Lyndhurst site and the Napandee site;

24.3 the Poll did not permit native title holders to respond (nor other community
members ordinarily resident outside the Kimba LGA)4;

24.4 the Poll was conducted in circumstances where the only published materials
concerning Aboriginal heritage were to the effect that there were no registered
Aboriginal sites which (misleadingly) implied that there would be no adverse
effect upon Aboriginal heritage;

24.5 the Poll is stale and unreliable because it was conducted prior to:

24.5.1 the SARS-CoV-2 pandemic, which has brought about substantial
population shifts from cities to regions across Australia; and

24.5.2 the destruction of Juukan Gorge and accompanying public outcry,
which has substantially altered both community and Parliamentary5
attitudes concerning the protection of Aboriginal heritage within
Australia.

25. The other surveys undertaken by the Department in late 2019 suffer from the same
problems as the Council Poll.

26. The ‘neighbourhood sentiment survey’ suffers from the additional difficulty that
eligibility changed to include some (but far from all) native title holders as ‘neighbours’
but far too late to be acted upon (just four days prior to close of the neighbourhood
sentiment survey, and well after prospective ‘neighbours’ had been asked to provide
contact information). Relevant correspondence is included in Attachment 63.

27. All formal surveys undertaken or commissioned by the Department have been targeted
so as to avoid engaging with the Barngarla people as traditional owners.

28. We also dispute entirely this statement in the Department’s publication Community
Sentiment — National Radioactive Waste Management Facility March 2020 in respect
of the efforts to consult with us the Barngarla People.

29. Attachments 5 to 118 comprises all the relevant correspondence, and associated
material such as the Court dispute regarding the Council Poll, and the issues to do
with the proposed Bill, in chronological order which demonstrates the persistent
‘fobbing off’ of us the Barngarla people.

30. However, the fact that the Department even contemplated a ‘ballot of [BDAC’s]
members’ separately from all other community engagement and consultation makes it
clear that the Barngarla people have otherwise been excluded from the ‘community’
which has been consulted.

4 In particular, a number of farmers were excluded due to the boundary not extending to their
properties.
5 See A Way Forward — Final report into the destruction of Indigenous heritage sites at Juukan Gorge published by the Joint Standing Committee on Northern Australia in October 2021:
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Northern_Australia/CavesatJuuka
nGorge/Report.

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31. The Barngarla people are the original community of the area. It is inherent in the very
word ‘aboriginal’.6 Many Barngarla people were born in or near Kimba and grew up in
or near Kimba. Some have worked there. Some have lived there. Many have
exercised native title rights in and around the Kimba LGA. The Barngarla people have
been, and remain, traditional owners of the whole of the Kimba LGA.7

32. This country is our home. We are physically and spiritually connected to it. We are
part of it and it is part of us. Our native title rights, recognised by Australian law as a
form of property, include inalienable rights to:

32.1 live on, use and enjoy our lands and waters;

32.2 access our lands and waters;

32.3 use and enjoy resources of our lands and waters;

32.4 maintain and protect places of importance; and

32.5 conduct burial ceremonies on our lands and waters.

33. All modern ‘community’ which exists around the Napandee site is seated within the
community established many thousands of years ago by the Barngarla people.

34. To deny that the Barngarla people, as a whole, are part of today’s community is to
deny their recognised native title, their recognised traditional laws and customs, their
recognised connection to the Napandee site and many square kilometres around it. It
is to deny their first, original, community.

35. To ignore the Barngarla, to not even consult with us, to not even extend eligibility to us
in the most basic of polls and surveys is to ignore that we – unlike other community
members – do not come and go. Our community continues thousands of years’
connection to the Napandee site and surrounds, and intends to continue that
connection thousands of years into the future. The same cannot be said for farmers,
local business owners, and non-indigenous residents.

36. For the Department or its consultants to determine that someone who had resided
within the neighbour radius for just 30 consecutive days immediately prior to the
neighbour survey date had the right to express a view while the Barngarla people who
have cared for this land for thousands of years but ordinarily resided outside the
survey area had no right to express a view was more than a slap in the face. It was
racist. It was systemic racism in action.

37. Applying Aboriginal time-scales, the ‘community’ consulted by the Department is
fleeting and momentary. Even applying the time-scales appropriate to a long-term
radioactive waste disposal facility (i.e. hundreds of years), it is clear that the Barngarla

6 As Justice Edelman of the High Court of Australia said in Love v Commonwealth (2020) 94 ALJR
198 at [451]:
The very words “Aboriginal” and “indigenous”, ab origine or “from the beginning”, enunciate a
historical, and original, connection with the land of Australia generally. The sense of identity
that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be
altered or deemed not to exist.
7 Save for the very north-western corner, which lies within the country of the Gawler Ranges People.

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people are likely to be one of the very few constants in the area. They will the suffer
the consequences of the facility for many generations.

38. It follows, with respect, that without the support of the Barngarla people there is not,
and cannot, be ‘broad community support’. To contend otherwise would also be racist.
It would exclude the traditional Aboriginal owners from the community.

39. We do not say ‘racist’ lightly. We rely on UN Declaration on the Rights of Indigenous
Peoples,8 and in particular articles 8.1,9 11.1,10 12.1,11 18,12 and 29.2. Article 29.2
states:

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.

40. The Barngarla people do not support the selection of Napandee at any level —
spiritual, cultural, economic or environmental. They do not give their consent. They
have demonstrated this with their independent ballot and their years of submissions
and involvement since.

41. When taken together, the outcome of the ballots shows:

Poll Eligible voters Return Rate Yes No
Barngarla 209 40% 0 83
Council 824 89% 452 282
Total 1033 79% 452 365

Percent yes of Percent yes of Percent yes of Estimate community sentiment if
eligible voters returned voters Barngarla polls taken as a statistical survey
voters i.e. opinion poll (using an adjusted
return rate of 89% for both the
Barngarla ballot and Council Poll)
43.75% 55%% 0% 49% yes
51% no

42. Even on the Government’s own material, the Government does not even have a
simple absolute majority of eligible voters for support of the facility at Napandee,
presumably what is required at the very least for the Government to argue that there is

8 Endorsed by Australia in 2009.
9 Indigenous peoples and individuals have the right not to be subjected to forced assimilation or
destruction of their culture.
10 Indigenous peoples have the right to practise and revitalize their cultural traditions and customs.

This includes the right to maintain, protect and develop the past, present and future manifestations of
their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies,
technologies and visual and performing arts and literature.
11 Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in
privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects;
and the right to the repatriation of their human remains.
12 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures,
as well as to maintain and develop their own indigenous decision-making institutions.

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‘broad community support’. At best, the Government has a plurality of eligible voters in
support, but this is based entirely on the lower turn out rate caused largely by the
Barngarla needing to hold their ballot urgently, with nowhere near the resources of the
Council Poll. One major section of the community, that is the First Peoples,
unanimously oppose the facility, which shows that any ’community support’ is not
’broad’. As indicated above, the Council Poll is entirely unreliable anyway due to the
matters raised in paragraph [24].

43. We call on you to honour the commitment to not select a site which lacks broad
community support, and to not select Napandee.

44. Alternatively, we submit that you cannot lawfully make a decision until proper and
comprehensive community consultation has occurred in which:

44.1 the ‘community’ is not limited, targeted or segmented as has been done in the
past; and

44.2 accurate and complete information concerning the impact upon Aboriginal
heritage and culture is publicly available.

45. A single ballot open to all persons who have any right, interest, or regular involvement
with any land within 50 km of the Napandee site would be an appropriate method to
gauge support. Those are the people who make up the relevant ‘community’.

46. The provision of accurate and complete information concerning the impact upon
Aboriginal heritage and culture is obviously important. There is a world of difference
between, for example, a known ‘sterile’ environment and a place like Juukan Gorge.

Aboriginal Heritage

47. The previous Minister’s ‘preferred site determination’ dated 21 January 2020 included
this passage (bolding ours):

While Native Title has been extinguished at all of the sites, this does not
minimise the need to preserve and protect Aboriginal cultural heritage. It will
be vital for the Government and the department to work with the
Barngarla Determination Aboriginal Corporation (BDAC) to ensure the
preservation and protection of Aboriginal cultural heritage.

48. This has not happened. Past dealings with the Government and the Department
strongly suggest that it will not happen (see Attachments 7, 13 and 14). After
selection of the Napandee site, sections 23 and 24 of the Act will remove any legal
requirement to do so in relation to construction and operation of the facility.

49. The Barngarla People consider it absolutely critical that before any site is selected
under s 14 a comprehensive and complete on-ground and in-person Aboriginal
cultural and heritage assessment is undertaken in conjunction with the Barngarla
people.

50. As you know, this is something we have been requesting since 2017.

51. We consider that this is a mandatory relevant consideration to be addressed now and
prior to gauging community support because Aboriginal heritage protections will be
disapplied later.

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52. A proper cultural and heritage assessment involving the traditional owners is,
respectfully, the bare minimum that any modern, First Nations-respecting government
should carry out.

53. The Parliamentary Joint Committee on Northern Australia handed down the Juukan
Gorge final report on 18 October 2021. In the foreword it is acknowledged how ‘Loss of
cultural heritage diminishes the heritage of our nation and deeply wounds the
Aboriginal and Torres Strait Islander peoples for whom this heritage is sacred.’ Finding
7.48 states that:

Aboriginal and Torres Strait Islander peoples must have greater access to their
areas, sites and places, and the connected knowledge and cultural expression,
and the law must empower them to protect their cultural heritage. This will
enable them to care for heritage sites in line with their customary obligations,
and contemporary aspirations.

54. The Parliamentary Joint Committee on Human Rights handed down Report 4 on 9
April 2020, which stated at 2.168 that ‘in relation to any cultural and spiritual
significance attaching to the land itself, it remains unclear how this would be protected
once a radioactive waste facility is operational on the site. Further, it is unclear how
Indigenous people will be able to access sites of cultural significance, should they be
determined to exist.’

55. The Committee, at 2.172 of their findings documented in the Report, acknowledge our
opposition to the specification of Napandee as the site for the establishment of a
radioactive waste facility, and the potential for the site to impact on Indigenous cultural
heritage. We strongly agree with the Committee’s statement that ‘there is a significant
risk that the specification of this site will not fully protect the right to culture and self-
determination.’

56. The Aboriginal Heritage Act 1988 (SA) (Heritage Act) protects Aboriginal sites,
objects and remains.

57. This includes ethnographic and/or mythological sites, and archaeological sites.

58. Aboriginal sites are protected whether registered or not. Unregistered and registered
Aboriginal sites are given equal protection under the Heritage Act.

59. There are many very important Aboriginal sites in the Barngarla Determination Area
which are not registered.

60. The Aboriginal Heritage Desktop Assessment Report commissioned by the
Department and completed in July 2018 stated:

This report presents the findings of preliminary desktop research and LiDAR survey and
landscape analysis. Consultation with Traditional Owners has not formed part of this
assessment, it is understood that the Department will consult with Traditional Owners for
the purposes of the Aboriginal Cultural Heritage Assessment.
[Emphasis added]

61. It remains the case that the Department has not commissioned or conducted field work
or research with any Barngarla traditional owners.

62. In our view, that state of affairs is simply untenable.

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63. No decision under s 14 of the National Radioactive Waste Management Act 2021 (Cth)
should be made until the Napandee site has been the subject of a full and complete,
on-ground and in-person Aboriginal heritage survey conducted by knowledgeable
Barngarla people together with an expert archaeologist and anthropologist and a
comprehensive report prepared concerning the Aboriginal heritage present at that site
(and, in the case of excavation, likely to be present at that site).

64. As the effective proponent of the facility, the Department should fund and facilitate that
process including by access to the land. Sections 11 and 12 of the Act provide ample
power to do so.

65. The Barngarla People have been requesting this assessment of heritage from the very
beginning of its contact with the Department in 2017.

66. Because the Napandee site is freehold, the Barngarla People have no right of entry. It
is critical that entry be facilitated (as previously requested) and the cultural and
heritage attributes of the site properly surveyed. It is likely13 that there are protected
archaeological Aboriginal sites, but without entry and inspection, these cannot be
mapped.

67. Our request to be involved in such survey remains outstanding. We remain able to do
this prior to you issuing any declaration, so you can properly assess this information.
We can, and will if asked, make appropriately knowledgeable people available at short
notice. Given 7 days’ notice, we can ensure our expert(s) and relevant Elders attend
and participate.

68. As an illustration of why proper on-ground and in-person Aboriginal heritage
investigations are necessary please see the independent expert report of Dr Dee
Gorring (Attachment 3) which we obtained and funded ourselves, who concluded
(bolding ours):

4.5 Heritage Summary

The fact that 9 Aboriginal cultural heritage sites and a further 9 possible Aboriginal cultural
heritage sites, most of which are associated with the Seven Sisters Dreaming story, were
identified within the study area suggests that caution should be taken during any activities
undertaken within the proposed Lyndhurst and/or Napandee properties in relation to the Kimba
Waste Management Facility project.

Although the preliminary cultural heritage assessment was not continuous across the landscape
between the Lyndhurst and Napandee properties, it would appear that the Seven Sisters
Dreaming story (which begins in the Whyalla/Ironknob area), makes its way from Lake Gillies
in the northeast of the Lyndhurst property, and travels in a southwest direction to the Napandee
property. BDAC representatives informed me that the Seven Sisters Dreaming story continues
from the Napandee property to the Buckleboo area, where the Seven Sisters eventually flee
their pursuer into the sky and form the Pleiades star constellation.

The study area and/or the surrounding region clearly represents an important cultural landscape
which is significant to both Barngarla men and women. BDAC representatives also drew
attention to a number of resource and/or totemic species (including kangaroo, emu and sleepy
lizard) seen throughout the heritage assessment. As such, BDAC representative expressed
their concern for the protection of their cultural heritage sites and places, as well as the resource
and/or totemic species identified during the preliminary heritage assessment should works be
undertaken within the Lyndhurst or Napandee properties.

13 See the statutory declaration of Dawn Taylor.

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69. Please also read carefully the statutory declaration of Dawn Taylor.

Importance of the Seven Sisters Dreaming

70. The Seven Sisters Dreaming is very important to Barngarla people, particularly
Barngarla women. Many of its details are restricted to Barngarla women of sufficient
seniority.

71. The Dreaming explains the Dreamtime (ancestral) creation of many landscape
features, and the Dreaming continues to live in the landscape today.

72. The Dreaming also identifies sacred and restricted women’s places.

73. Knowing, and caring for, teaching, and passing on the Seven Sisters Dreaming to
younger Barngarla people (when they are ready for it) is an important part of Barngarla
culture.

74. As recorded in Dr Gorring’s report, the Dreaming passes through and near the
Napandee site.

75. At least14 two cultural sites occur on the Napandee site, one significant to women (Site
14) and one significant to both men and women (Site 16).

76. We the Barngarla people, like many other Aboriginal peoples, believe that interference
with the Dreamings, particularly important Dreamings, will bring sickness and death to
us.

77. We must fight to protect our Dreamings and the places associated with them. It is not
a coincidence that, as colonisation took our lands it also took our health and
diminished our numbers.

78. It is also hurtful when Dreamings are interfered with. We feel it in our hearts, our
heads and our souls. Our ancestors cry out to us, and we cry with them.

79. Construction and operation of the facility will be very different to the present farming
use made of the Napandee site. No longer would it be practicable to access that land
and the sites on it. Substantial excavation will disturb the land. The land will be lost to
the Dreaming, and that part of the Dreaming will be lost to us.

80. Selecting the Napandee site will interfere with our heritage and culture in a way that
cannot be made good by substitution of other land (even if that were on offer) or
monetary compensation.

81. Again, we ask you not to select the Napandee site.

14 A third site, Site 10, is also likely.

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Pre-determination

82. We are very concerned by the behaviour of the Government, the Department, the
previous Minister and, respectfully, your behaviour also.

83. In our view, at least the following steps (there are too many others to list, and most are
obviously public record) indicate pre-judgment of any declaration of Napandee as a
selected site under s 14:

83.1 it is the only site put forward for consideration;

83.2 in December 2019 the then-Minister sought submissions concerning selecting
Napandee;

83.3 the local Member (Mr Ramsey MP) announced on 1 Jan 2020 that Napandee
had been selected, and;

83.4 in January 2020 the Minister published reasons for determining that Napandee
was the preferred site;15

83.5 in early 2020 the Department telephoned us, saying words to the effect that
Napandee had been selected as the site;

83.6 the previous Minister announced on 1 Feb 2020, that Napandee had been
selected. This has never been retracted or denied;

83.7 since that time the Government and Department have engaged with us, the
Barngarla People, on the basis and understanding that Napandee had been
selected;

83.8 in December 2020 appointment of a lead engineering consultant to “support
ANSTO in progressing the facility from the current concept design through to
preliminary design at the Napandee site”16 was released for tender by the
Government;

83.9 for 18 months, commencing in February 2020, the Government attempted to:

83.9.1 legislate selection of the Napandee site; and

83.9.2 exclude judicial review of selection of the Napandee site;

83.10 the Government wrongly and misleadingly stated repeatedly that legislating the
selection of Napandee was ‘necessary’;

83.11 by attempting to exclude judicial review, a step only very rarely taken, it
appears the Government accepted that the process up to that point was not
legally defensible; and

15 Record of Minister’s assessment of preferred site (as of 21 January 2020), Dept of Industry,
Science, Energy and Resources, downloaded from www.industry.gov.au/sites/default/files/2020-
03/nrwmf-record-of-ministers-assessment-of-preferred-site.pdf
16 https://www.tenders.gov.au/Atm/ShowClosed/0d75755d-5100-42ae-86e9-

4eb72486fa36?PreviewMode=False

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83.12 however, after the Government’s legislative attempts failed, there was no
attempt to undertake the processes of the Act afresh, including proper
community consultation and obtaining a complete and comprehensive on-
ground and in-person Aboriginal culture and heritage report. The lack of
adherence to ordinary administrative process is alarming.

84. Documents evidencing these steps are included in Attachments 1, 69 and 72 to 118.

85. The evident determination to not merely ‘prefer’ but to have already decided to select
Napandee prior to giving notice under s 18 gives rise to a reasonable apprehension of
bias by BDAC and the Barngarla people.

86. This apparent bias by pre-judgment can only be cured by either:

86.1 rejecting the Napandee site, thereby allowing the entire site identification and
selection process to commence afresh; or

86.2 taking the steps we have identified above (proper heritage assessment and
then proper community consultation) and then ensuring a process where the
decision is demonstrably made afresh without any prejudgment in favour of the
Napandee site, including by having a never-previously-involved delegate
consider all submissions and make the decision.

Conclusion

87. BDAC and the Barngarla People have rights and interests in the Napandee site.

88. At least two, likely three or more, significant Aboriginal sites exist on the Napandee
site, which itself is associated with the very important Seven Sisters Dreaming.

89. Other Aboriginal sites, objects and remains may exist on the Napandee site but the
Barngarla people have been denied access, funding and expert assistance to carry out
a complete and comprehensive on-ground and in-person Aboriginal culture and
heritage assessment.

90. The community consultation process has miscarried at least through its exclusion of
the Barngarla people as native title holders and traditional owners, but more
fundamentally at the level of identifying the affected community and contemporary
attitudes post-pandemic and Juukan Gorge destruction.

91. In any event, the community consultation process does not demonstrate ‘broad
community support’ and the Government has committed not to select a site without
broad community support. That commitment must be honoured.

92. The selection of Napandee appears to be pre-determined and the failure of your office
and the Department to correct the obvious problems with the process to date
reinforces this conclusion.

93. We ask that you:

93.1 do not select the Napandee site; or

93.2 carry out the steps which we have identified at paragraph 1, 2 & 86 above as
necessary to correct the consultation and investigation process, and then

13
delegate the final decision under s 14 to an independent delegate who has had
no prior involvement in the process and is not beholden to any political master.

94. Should you have any questions or requests of us, we ask that you make the promptly
and prior to making any decision.

Sincerely

The Barngarla People
Barngarla Determination Aboriginal Corporation RNTBC ICN 8603

14

Index to Attachments

Attachment 1- Previous submission to Canavan dated 12 December 2019

Attachment 2- Maps

Attachment 3- Kimba Radioactive Waste Management Facility Heritage Assessment dated 4 June 2018

Attachment 4- Dawn Taylor affidavit

Attachment 5 – Letter first contacting Department dated 7 April 2017

Attachment 6 – Letter from Bruce Wilson to Norman Waterhouse dated 4 May 2017

Attachment 7- Letter from Norman Waterhouse to Bruce Wilson dated 10 July 2017

Attachment 8- Letter from Bruce McCleary to Norman Waterhouse dated 14 August 2017

Attachment 9- Letter from Norman Waterhouse to Bruce McCleary dated 13 October 2017

Attachment 10- Letter to Bruce McCleary from Norman Waterhouse regarding Kimba Consultative Committee
Nomination 31 October 2017

Attachment 11- Letter of offer from Bridget Kane to Norman Waterhouse regarding cultural heritage clearance
survey dated 10 January 2018

Attachment 12- Letter from Rebecca Mouthaan to BDAC recording the first time the DIIS offered to meet with
Barngarla dated 20 February 2018

Attachment 13- Letter from Norman Waterhouse to Rebecca Mouthaan regarding heritage matters dated 21 February
2018

Attachment 14- Correspondence from Bruce McCleary to Norman Waterhouse advising that DIIS could not meet
with BDAC board dated 28 February 2018

Attachment 15- Letter from District Council of Kimba to Chairperson Senate Committee dated 29 March 2018

Attachment 16- BDAC Submission to Inquiry dated 3 April 2018

Attachment 17- Letter from Bruce Wilson to Norman Waterhouse regarding Cultural Assessment dated 14 May 2018

Attachment 18- Letter from Norman Waterhouse to Bruce Wilson regarding invitation to meet with BDAC Board
dated 18 May 2018

Attachment 19- Letter from BDAC to District Council of Kimba regarding inclusion in ballot dated 30 May 2018

Attachment 20- Letter from District Council of Kimba to BDAC regarding inclusion in ballot dated 31 May 2018

Attachment 21- Letter from Bruce Wilson to Norman Waterhouse regarding proposed meeting dated 8 June 2018

Attachment 22- Letter from BDAC to District Council of Kimba regarding ballot dated 12 June 2018

Attachment 23- Letter from District Council of Kimba to BDAC regarding ballot 15 June 2018

Attachment 24- Letter from BDAC to District Council of Kimba dated 19 June 2018

Attachment 25- Letter from Norman Waterhouse to Bruce Wilson dated 25 June 2018

Attachment 26- Letter from Norman Waterhouse to Bruce Wilson dated 3 July 2018

Attachment 27- Supplementary Submissions to Senate Committee dated 4 July 2018

Attachment 28- Letter from Norman Waterhouse to Bruce Wilson dated 12 July 2018

Attachment 29- Letter from BDAC to District Council of Kimba notifying of BDAC ballot dated 17 July 2018

Attachment 30- Letter from Sam Chard to Norman Waterhouse agreeing to heritage statement dated 18 July 2018
Attachment 31- Email correspondence between Norman Waterhouse and King & Wood Mallesons regarding
attendance at session dated 23 July 2018

Attachment 32- Answers to Questions on Notice from Hearing in Kimba on 5 July 2018 dated 27 July 2018

Attachment 33- Deputation to Special Council meeting of District Council of Kimba dated 27 July 2018

Attachment 34- Kimba National Radioactive Waste Management Facility Department Report July 2018

Attachment 35- Email correspondence from King & Wood Mallesons to Norman Waterhouse regarding Board
meeting on 12 August 2018 dated 1 August 2019

Attachment 36- Email correspondence from King & Wood Mallesons to Norman Waterhouse regarding contact
email 6 August 2018

Attachment 37- Affidavit of Abby Hamdan (Supreme Court) dated 13 August 2018

Attachment 38- BDAC v District Council of Kimba Outline of Submissions dated August 2018

Attachment 39- BDAC v District Council of Kimba Statement of Claim dated 14 August 2018

Attachment 41- BDAC v District Council of Kimba Record of Outcome dated 16 August 2018

Attachment 42- Letter from Rick Berry to Emma Richards and Roderick Wingfield regarding attending tour in
Sydney dated 12 September 2018

Attachment 43- Email correspondence between King & Wood Mallesons and Norman Waterhouse dated 18 -19
September 2018

Attachment 44- Letter from Sam Chard to GRAC regarding proposed site offering dated 7 November 2018

Attachment 45- Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA
1092

Attachment 46- Letter from BDAC to Minister for Indigenous Australians dated 10 August 2019

Attachment 47- Email correspondence between DIIS and BDAC dated 19- 20 August 2019

Attachment 48- Letter from Minister Canavan to GRAC regarding financial support for meeting or poll for NRWMF
dated 20 August 2019

Attachment 49- Letter from BDAC to Minister Canavan dated 22 August 2019

Attachment 50- Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA
1585 dated 27 September 2019

Attachment 51- Letter from Norman Waterhouse to Minister Canavan dated 30 September 2019

Attachment 52- Letter from Minister Ken Wyatt to BDAC dated 1 October 2019

Attachment 53- Letter from Norman Waterhouse to Minister Canavan dated 2 October 2019

Attachment 54- Letter from GRAC to Sam Chard dated 2 October 2019

Attachment 55- Letter from Natasha Jones to Abby Hamdan confirming they are unable to provide copy of ballot to
BDAC dated 3 October 2019

Attachment 56- Letter from Norman Waterhouse to Minister Canavan requesting confirmation that BDAC votes be
counted equally dated 15 October 2019

Attachment 57- Declaration of results and ballot process statement dated 19 October 2019

Attachment 58- Letter from BDAC to Minister Canavan regarding ballot dated 20 November 2019

Attachment 59- DIIS Media Release 20 November 2019

Attachment 60- Letter from Norman Waterhouse to Minister Canavan regarding neighbor survey dated 22 November
2019
Attachment 61- Letter from Paul James to Norman Waterhouse dated 3 December 2019

Attachment 62- Letter from Minister Canavan to BDAC regarding ballot results dated 9 December 2019

Attachment 63 Letter from Minister Canavan to Norman Waterhouse regarding ballot results dated 9 December 2019

Attachment 64- Letter to Minister Canavan from Norman Waterhouse regarding Neighbor Sentiment Survey dated
11 December 2019

Attachment 65- Letter from Norman Waterhouse to Sam Chard regarding Neighbor Sentiment Survey dated 16
December 2019

Attachment 66- Letter from BDAC to Minister Canavan enclosing independent report from Australian Election
Company dated 16 December 2019

Attachment 67- Letter from Paul James to Norman Waterhouse dated 22 December 2019

Attachment 68- Letter from Paul James to Norman Waterhouse acknowledging submissions and request for meeting
dated 22 December 2019

Attachment 69– Rowan Ramsey Media Release dated 1 January 2020

Attachment 70- Letter from Minister Canavan from to BDAC dated 10 January 2020

Attachment 71- Letter from BDAC to Minister Canavan regarding video and submissions dated 10 January 2020

Attachment 72- Record of Minister’s assessment dated 21 January 2020

Attachment 73- Email from Norman Waterhouse to Office of Minister Canavan requesting written reasons for
announcement of Napandee as site dated 1 February 2020

Attachment 74- Minister Canavan Announcement of Napandee to host facility dated 1 February 2020

Attachment 75- National Radioactive Waste Management Amendment (Site Specification, Community Fund and
Other Measures) Bill 2020 introduced in House of Representatives dated 13 February 2020

Attachment 76- Ministerial Media Release dated 13 February 2020

Attachment 77- Email from Shane Holland to Norman Waterhouse regarding meeting and ministerial changes dated
14 February 2020

Attachment 78- Letter from new Minister Keith Pitt to BDAC dated 26 February 2020

Attachment 79- BDAC response to Minister Pitt dated 26 February 2020

Attachment 80- Terms of Reference for Economics Legislation Committee Inquiry dated 28 February 2020

Attachment 81- Letter from Minister Pitt to Norman Waterhouse regarding statement of reasons and exercise of
power dated 5 March 2020

Attachment 82- Letter from Norman Waterhouse to Minister Pitt regarding proposed removal of judicial oversight
dated 12 March 2020

Attachment 83- Email from Shane Holland to Norman Waterhouse dated 12 March 2020

Attachment 84- Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020]
FCAFC 39

Attachment 85- Submission to Senate Standing Committee on Economics dated 26 March 2020

Attachment 86- Parliamentary Joint Committee on Human Rights Report dated 9 April 2020

Attachment 87- Letter from Minister Pitt to Norman Waterhouse dated 9 May 2020

Attachment 88 – Correspondence between Norman Waterhouse, Sam Reinhart and Jason Bilney dated 10-13 May
2020
Attachment 89- Letter from BDAC to Sam Chard dated 22 June 2020

Attachment 90- Email correspondence between Norman Waterhouse and Sam Chard regarding meeting with
Minister 23 June 2020

Attachment 91- Senate Economic Legislation Committee Hearing date 30 June 2020

Attachment 92- Email from BDAC to Sam Chard regarding meeting with Minister dated 1-3 July 2020

Attachment 93- Letter from Sam Chard to Senate Committee dated 10 July 2020

Attachment 94- ARWA Media Release regarding new agency to manage radioactive waste site process dated 21 July
2020

Attachment 95- Joint media release with Rowan Ramsey and Dan von Holset Pellekaan dated 21 July 2020

Attachment 96- Letter from Sam Chard to Barngarla regarding engagement dated 30 July 2020

Attachment 97- Letter from Barngarla to Minister Pitt regarding concerns with site selection process dated 1 August
2020

Attachment 98- Senate Economic Legislation Committee Hearing Response dated 2 August 2020

Attachment 99- Letter from BDAC to Sam Chard dated 2 August 2020

Attachment 100- Correspondence between BDAC and Sam Chard regarding aerial assessment of terrain dated 5
August 2020

Attachment 101- Final Report Economics Legislation Committee Inquiry Dated 14 September 2020

Attachment 102- Letter from Sam Chard to BDAC dated 14 October 2020

Attachment 103- Letter from BDAC to Minister Pitt requesting meeting dated 21 October 2020

Attachment 104- Correspondence between BDAC and Shane Holland regarding meeting dated 22 October 2020

Attachment 105- Email to Norman Waterhouse from Office of Minister Putt confirming meeting dated 27 October
2020

Attachment 106- Letter from Minister Pitt to BDAC regarding recent letters from BDAC dated 27 October 2020

Attachment 107- Letter from BDAC to Sam Chard regarding visit to Canberra dated 28 October 2020

Attachment 108- Email from Shane Holland to BDAC dated 29 October 2020

Attachment 109- Letter from BDAC to Minister Pitt dated 30 October 2020

Attachment 110- Email from Shane Holland to BDAC regarding postponement of site activities dated 2 November
2020

Attachment 111- ABC Radio National transcript dated 30 November 2020

Attachment 112- Tender for Provision of Schematic Design for NRWMF dated 11 December 2020

Attachment 113- Department Media Release dated 18 December 2020

Attachment 114- Email from Office of Minister Pitt to Norman Waterhouse dated 11 June 2021

Attachment 115- Letter from Norman Waterhouse to Madeleine King MP dated 14 June 2021

Attachment 116- Letter from Minister Pitt to Madeleine King MP regarding Explanatory Memorandum dated 15
June 2021

Attachment 117- Letter from Minister Pitt to Madeleine King MP dated 15 June 2021

Attachment 118- Summary of Bill as passed through both Houses of Parliament and Explanatory Memorandum
dated 23 June