Federal Court of Australia accepts challenge against decision to establish radioactive waste facility on indigenous land

14 September, 2023

On 18 July 2023, Charlesworth J of the Federal Court of Australia handed down judgment in Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809. The claim consisted of a challenge to the constitutional validity of the National Radioactive Waste Management Act 2012 (Cth) (“the NRWM Act”), as well as two applications for judicial review against a decision under the NRWM Act to declare a parcel of land known as Napandee as the site for the establishment and operation of a facility for the management of radioactive waste. The applicants represented the traditional indigenous owners of the land in question, the Barngarla people.

One of the applicants’ arguments was that the NRWM Act was unconstitutional because it did not give effect to Australia’s international obligations under the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. Specifically, they argued that the NRWM Act did not (as, they alleged, was required by the Joint Convention) give effect to certain rights of indigenous peoples recognised under customary international law, including in relation to self-determination, autonomy and self-government; cultural heritage and identity; and land, territory and resources. The Court, however, rejected this argument, including because the applicants had not established that the asserted rights had the status of customary international law.

However, the Court nonetheless set aside the decision to establish the waste facility on the administrative law ground of apprehended bias.

Professor Dapo Akande was instructed by the Commonwealth of Australia and the Commonwealth Minister for Resources to provide an expert report concerning the rights of indigenous peoples under customary international law. Naomi Hart assisted in the preparation of that expert report.