Scottish ministers have the power to halt plans to dump nuclear waste on Aboriginal land in Australia which could breach human rights, according to government advisors.

Documents obtained by The Ferret reveal that expert advice sought by ministers stated that the Scottish Government could prevent the export of radioactive waste from the UK under a swap arrangement involving the Dounreay nuclear complex in Caithness.

The revelations have prompted campaigners to call for the Scottish Government to step in and stop the waste dumping, which they see as a potential desecration of sacred Aboriginal lands in south Australia.

The Scottish Government and its regulator, the Scottish Environment Protection Agency (Sepa), have insisted that regulating the waste shipment is not their responsibility – but Sepa’s former chief executive says this is wrong.

Nuclear fuel was sent from an Australian research reactor to Dounreay for reprocessing in the 1990s. The resulting radioactive waste, amounting to 51 cemented drums, was originally due to be returned to Australia for disposal.

But under the terms of a waste substitution deal in 2014, Scottish and UK governments agreed that the drums should stay at Dounreay because of the difficulties of transporting them around the globe.

Instead, four containers of “radiologically equivalent” waste would be returned to Australia from the Sellafield nuclear complex in Cumbria. The shipment is due to be made in the early 2020s.

The waste will initially be stored at Lucas Heights in Sydney, but will later be transferred to Australia’s planned National Radioactive Waste Management Facility. Two potential locations have been identified for this facility in south Australia – Wallerberdina Station, near Hawker, and Kimber – both of which face opposition from indigenous communities.

Now documents released under freedom of information law disclose that Scottish ministers were advised in April 2018 that Sepa was a “competent authority” for the planned waste export and could be “obliged to address human rights issues”.

The advice was requested from the Committee on Radioactive Waste Management (CoRWM), which reports to Holyrood and Westminster on nuclear waste issues. The committee responded with a one-page “opinion on human rights issues”.

The lead author was Campbell Gemmell, CoRWM’s deputy chair, Sepa’s former chief executive and a professor at the University of Glasgow. He has also been chief executive of the South Australian Environment Protection Authority, and wrote a report for the Scottish Government in 2016 which led to the abandonment of plans to set fire to coal under the Firth of Forth.

The advice was also attributed to Stephen Tromans QC, a leading expert on nuclear waste law and a member of CoRWM. “The substituted material seems to be treated in the same way as the original under Euratom law,” Gemmell and Tromans said.

It was hence Sepa’s job to authorise the export, they argued. “It must not allow shipment unless it is satisfied that Australia has the administrative and technical capacity to manage the waste safely.”

They concluded: “The upshot seems therefore to be that Sepa must refuse authorisation if there are safety issues, or if there is doubt that the disposal facility complies with Australian law. It may also however refuse authorisation on social, ethical, human rights grounds.”

It was up to Sepa what decision to come to, or for Scottish ministers if there were to be an appeal, Gemmell and Tromans added. “Arguably it might be said that Sepa is obliged to address human rights issues under the Human Rights Act 1998 if the rights of indigenous peoples are being infringed, even outside Scotland.”

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nuclear waste
Dounreay nuclear complex

However, Sepa and the Scottish Government both appear to have rejected CoRWM’s advice, saying that the export is a matter for the Environment Agency, which covers England and Wales.

“No waste is being returned from Dounreay to Australia,” said a Sepa spokesperson. “Whilst a radiologically equivalent amount of vitrified waste will be sent from Sellafield in England under international agreement, this will be regulated by the English Environment Agency.”

The Scottish Government argued that the location of the final storage site was a matter for Australian authorities. “No waste is moving from Scotland and Sepa has confirmed the relevant competent authority for waste moving from Sellafield is the Environment Agency for England and Wales,” said a government spokesperson.

However, the Environment Agency has since suggested that Sepa did have a limited role. “Sepa retain an interest in this matter in so far as the arrangements for substitution continue to meet the policy direction of broad environmental neutrality,” it told The Ferret.

“On that basis, they have an ongoing interest however this would only involve any direct regulatory role should there be any proposed change in the methodology which would undermine the position we jointly declared in May 2013.”

When asked to comment, Gemmell stood by the advice he gave to the Scottish Government in 2018. Along with the UK government, the UK Office for Nuclear Regulation (ONR) and the Environment Agency, Scottish ministers and Sepa had “an acknowledged interest in the process,” he said.

“The fact that the original contract for reprocessing was with Dounreay means that there is a responsibility between Scottish Government/Sepa and ONR to be confident that appropriate measures in relation to international obligations are addressed, including the human rights aspects. We offered a view that substitution does not fundamentally alter that.”

Gemmell urged responsibility to be shared to avoid the risk of those involved believing it was someone else’s problem. “It would seem to me to be justifiable and arguably best practice for the UK and Scottish Governments, and their agencies, to ensure that appropriate steps are taken to address international treaty as well as contract obligations,” he said.

Campaigners want the shipment to be blocked on human rights grounds. Gary Cushway, an Australian-Scot who has been helping the Aboriginal communities oppose the waste export, accused Australia of failing to protect the rights of indigenous people.

“Scotland can and should assert its devolved power over this material, rather than simply steam forward with the UK to fulfil this contract without full understanding of the situation at the other end of it,” he said.

“Neither the Scottish Government nor Sepa can rely on the Australian government for assurances that the final destination of this shipment of radioactive waste will not breach human rights legislation or UN treaties on protection of Indigenous people, without knowing where the final destination of this material will be and without full informed consent from appropriate indigenous people.”

Peter Roche, an anti-nuclear campaigner and member of Nuclear Waste Advisory Associates, pointed out that environmentalists were opposed to nuclear waste being transported around the world. “It should be stored in above ground stores on the site where it is produced,” he said.

“And should certainly not be sent back to Australia if it is likely to pose a potential risk to the rights of Aboriginal communities near the two proposed storage sites in Australia.”

He added: “The Scottish Government should accept that it bears some responsibility for this waste and tell the UK government to halt the proposed shipment.”

Ministers must ensure that the rights of indigenous peoples are not infringed when authorising any shipment. John Finnie, Green MSP

Scottish Green MSP, John Finnie, accused Scottish Ministers of saying one thing in public while receiving advice to the contrary in private. “Ministers must ensure that the rights of indigenous peoples are not infringed when authorising any shipment,” he said.

“In this instance it appears that any shipment would contravene the human rights of the indigenous community and as such I would urge the Scottish Government to refuse permission.”

He added: “It is clear that Sepa is required to determine whether any shipment can take place. They must take into account how the waste is disposed, and crucially, permission can be refused on social, ethical, human rights grounds.”

Regina McKenzie is an Adnyamathanha Elder whose home is adjacent to one of the proposed nuclear waste disposal sites at Wallerberdina. The threat is equivalent to “going to the Vatican and saying we want to put a waste dump right under the pillar where they say St Peter is buried,” she said.

McKenzie has Scottish heritage and last year sought a meeting with First Minister, Nicola Sturgeon, to discuss the issue. This request was refused, with officials citing “considerable diary pressures”.

The advice in April 2018 from the Committee on Radioactive Waste Management

The response from the Environment Agency in full

The letter from the First Minister’s office declining a meeting with Regina McKenzie

Cover image of Regina McKenzie thanks to Gary Cushway. Photo of Dounreay thanks to Jonathan Russell via this Creative Commons Licence. YouTube video thanks to ABC Australia.

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