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Mortimer, Suzanne --- "A Flawed Consultation Process Preventing 'Unprecedented Opportunity'" [2010] IndigLawB 43; (2010) 7(21) Indigenous Law Bulletin 21


A Flawed Consultation Process Preventing ‘Unprecedented Opportunity’

by Suzanne Mortimer

In August 2010, progress with the planned construction of the Liquefied Natural Gas (LNG) hub at James Price Point, 60km north of Broome in Western Australia reached a stalemate. The land in question was by this time subject to three separate native title claims of the Jabirr Jabirr people, the Goolarabooloo people and the Ngumbarl people over different parts of the land.[1] The Jabirr Jabirr people who since 1994 had held a joint native claim over James Price Point with the Goolarabooloo people had formally split from the claim on 7 April 2010 due to reportedly divergent views, and launched their own native title claim over the area.[2] Initially, the Jabirr Jabirr people had been in support of the Western Australian (WA) Government’s agreement with Woodside Energy Pty Ltd (‘Woodside’) to construct the LNG hub, whilst the Goolarabooloo people had opposed the construction only if it were to occur at James Price Point, due to the site’s cultural significance – however this was no longer the case.[3] The Kimberley Land Council (‘KLC’), the representative body for the Goolarabooloo and Jabirr Jabirr people, was facing legal action for failing to represent these traditional owners properly during negotiations, in which the traditional owners voted in support of the proposed gas hub.[4] The KLC stated that it was unable to further represent the claimants in negotiations while the legal proceedings continued,[5] and hence a final agreement was unable to be reached.

Fast forward to November 2010. WA Premier Colin Barnett has now definitively stated that compulsory acquisition of the land will take place.[6] The decision has already sparked protests and received condemnation from all affected traditional owners, as well as environmental groups and the Australian Greens Party.[7] Barnett had said previously that he would be ‘unashamedly prodevelopment’ and he presently maintains that the process is lawful, enabled by the Land Administration Act 1997 (WA) and the Native Title Act 1993 (Cth) (‘NTA Act’).[8]

It is a commonly-held assumption that traditional owners are necessarily opposed to commercial or economic development where it comes through the exploitation of land. Conservationist group Save the Kimberley says “it's difficult to see how this use of country can be made in any way compatible with the past, present or future of the Traditional Owners of the Kimberley.’[9] Furthermore, it is often assumed that negotiations involving multiple native title claimants with divergent interests are intractable and unable to be dealt with in the Western legal system. But this oversimplifies matters. Through briefly exploring the background to the negotiations and the pressure the WA Government placed on traditional owners to agree to Woodside’s development proposal, this article demonstrates that none of the respective parties were originally adverse to commercial development per se. Furthermore, while there is today significant disunity between the different traditional owner groups, this article argues that this is not because of ‘intractable’ differences. Rather, it was the choice of location and the flawed consultation process, not the idea of a gas hub itself that has produced this outcome.

Putting it in context – the WA Government’s Proposal

Plans to industrialise the Kimberley have been in existence since the 1990s. As early as 2005 the WA Government had wanted to establish a LNG hub off the Kimberley Coast[10] and since 2007 has considered over 40 potential sites for gas processing. This was reduced to four sites after long consultation between the Kimberley Land Council and respective Traditional Owners.[11]

In December 2008, James Price Point was announced as the final location for the proposed LNG hub. Proponents argued that it was ideal because the total area only comprised 0.2 percent of the Dampier Peninsula, no people lived within 10 km of the precinct, environmental and heritage requirements could be adhered to and it was on flatter ground than alternative sites, which would reduce its ‘visual impact’.[12] The WA Government and Woodside subsequently signed a preliminary agreement, with Woodside set to become the ‘foundation commercial proponent’ for the project.[13] Barnett declared that such a proposal would allow unprecedented opportunity and positive development in the lives of the Kimberley Aboriginal people.[14] The proposal, which provided for the development of a 30 billion dollar gas precinct and a further 1.5 billion dollar compensation package for the traditional owners, promised to assist in the areas of housing, unemployment, and to be a long-term investment in the region.[15] Thus the Government’s intention initially was to reach an Indigenous Land Use Agreement (ILUA) that would best serve the interests of the Government, Woodside, and the traditional owners – whose claim of native title was registered but yet to be determined in the Federal Court.[16]

Were the interests of traditional owners really taken into account?

In allowing just three months for the KLC to consult with the Goolarabooloo and Jabirr Jabirr people, establish their interests and come to an agreement over the imposition of the gas hub, it is evident that the schedule for negotiations was driven by non-Indigenous interests. During this short negotiating timeframe, Barnett made numerous threats that, if an agreement could not be reached, the government would compulsorily acquire the land.[17] Contrary to the process of voluntarily obtaining consent via an ILUA, the process of compulsory acquisition allows for the extinguishment of native title to the extent required by the imposition of a ‘future act’[18] – the act here being the planned imposition of the gas hub. The compulsory acquisition process is validated if such a ‘future act’ could take place on land that was subject to ordinary freehold title (rather than native title), and if a State or Commonwealth law allows for the protection of sites which are of potential Aboriginal cultural significance.[19] The Land Administration Act 1997 (WA) does indeed provide for this, ensuring consistency with the NTA Act.[20]

Whilst a mandatory period of negotiation between affected groups, or ‘a right to negotiate’, is required to validate the future act in this instance because the original Goolarabooloo/Jabirr Jabirr claim is registered, consent does not ultimately rest with the traditional owners.[21] Rather the National Native Title Tribunal or the relevant minister may make the final decision as to whether to permit the act if an agreement cannot be reached.[22] Barnett clearly demonstrated an impatience to meet the Indigenous groups’ needs in relation to the ILUA, and gave a lack of consideration to the fact that Indigenous groups may be under-resourced and unable to reach a decision of such magnitude within such a rushed framework. Thus, with compulsory acquisition now in place, this extra period of forced negotiation only perpetuated this non-Indigenous driven framework.

Why was the WA Government in such a hurry, given the long-term nature of the project? Why was the time-frame for consultation reduced to a mere three months for such a huge infrastructure project, initially set to cover a total area of 2 000 to 2 500ha (now reported to be totalling 10 000ha[23]), an area large enough that it could be viewed from space.[24] This approach was at odds with promises made by the Labor Government prior to Liberal member Barnett’s election in 2008, that the local Aboriginal people would be given a veto and control over which site would be used for gas processing.[25] The primary reason for the rushed negotiations appears to be because Barnett took it for granted that without coercion the traditional owners would reject the development proposal outright. Yet even in this hostile negotiation framework, the traditional owners concluded an in-principle agreement and voted in support of the proposed gas hub,[26] thus illustrating that such an assumption is problematic.

This incorrect assumption has not only prevailed among the parties seeking development. Retired Federal Court Judge Wilcox launched a booklet arguing against the gas plant and industrialisation in the Kimberley, which he sees as injuriously affecting Indigenous interests, and contrary to both the environmental cause and Indigenous interests.[27] This raises a second assumption that Indigenous interests must necessarily align with environmental interests. Must these two distinct interests always align?

Environmental and Indigenous interests – one and the same?

Conservationist groups The Wilderness Society and Save the Kimberley imply that Indigenous and environmental interests are invariably aligned, sharing Wilcox’s views. They stress the lack of Indigenous consent as a major concern, in addition to qualms over the environmental impact of the project.[28] Neil McKenzie, a Yawuru- Jabir Jabir Traditional Owner and Save the Kimberley co-chairperson, further argues that the development is forcing a choice between preserving land and culture, and benefiting from better education and health.[29] However, Bergmann, CEO of the KLC, asserts that conservationist organisations are only aligning with their own environmental agendas by emphasising the lack of consent issue, and underplaying the potential interest in economic development. Bergmann argues that the Aboriginal people’s rights are being undermined by a new wave of paternalism – the ‘green movement’.[30]

As CEO of the KLC, Bergmann’s views cannot be seen as entirely dispassionate. Nonetheless, he brings to attention the fact that while there are instances where conservation and culture intersect, it cannot be assumed that this will always be the case. This is clearly illustrated by the ongoing tensions in Queensland regarding the Wild Rivers legislation. The Wilderness Society strongly condemned Opposition Leader Tony Abbott’s recent plans to scrap the legislation, while Noel Pearson, Director of the Cape York Institute for Policy and Leadership, supports the move that would allow economic development and opportunity for Aboriginal people through exploitation of the land in these areas.[31] However, there are also various groups of traditional owners that condemn Abbott’s plans and contend that Pearson ‘does not speak for all Indigenous Australians’.[32] These include Cape York traditional owners represented by Wik Projects, as part of six North Queensland Indigenous groups who have bonded together in supporting the assertion that the Wild Rivers laws allow positive economic opportunities for Indigenous people, through encouraging sustainable economic development.[33] This conflict between different Indigenous groups illustrates that not all Indigenous interests will necessarily intersect with environmental interests. Diverging interests similarly exist in Tasmania, where the Tasmanian Aboriginal Centre has expressed anger over the State Government’s plans to establish a national park in the Bay of Fires area, which is a place of significant cultural importance for the Tasmanian Indigenous community.[34] However, Local conservation groups as well as the state-wide Wilderness Society support the plan.[35]

The Anti-Development Assumption

In relation to the LNG hub, conservationists ironically appear to fuel the assumption that Barnett appeared to have acted on to rush negotiations, i.e. that Indigenous people are always anti-development. While divergent, the views of the Jabirr Jabirr and Goolarabooloo people were not wholly incompatible; neither group was completely anti-development. The Jabirr Jabirr traditional owners protested the launch of Wilcox’s booklet, arguing that Wilcox’s assertions that the gas hub was not in the interests of the Aboriginal people did not represent the true position of Aboriginal communities. Frank Parriman, Co-Chair of the Traditional Owner Negotiating Committee and Jabirr Jabirr spokesman, stated that Wilcox never approached the Committee to establish their views on the proposed gas hub.[36] Furthermore, Parriman believes that the only way to improve the living standards of the Aboriginal people is through strengthening their economic personality and role in decision-making, and that the industrialisation of the Kimberley through the gas hub would allow this. The Committee’s support, however, was contingent on the WA Government committing to long-term and practical solutions to these issues.[37]

The Goolarabooloo people, the third group of native title claimants, have remained opposed to the James Price Point proposal due to the high cultural significance of the site. It is the midway point of the nine-day Lurujarri Heritage Trail, set up for young Goolarabooloo and Jabirr Jabirr people to learn about their country and culture from elders.[38] However, Goolarabooloo spokesman Joseph Roe emphasises that the Goolarabooloo people recognise the economic benefits and would not be opposed to the gas hub in another location within the native title claim area.[39] Roe asserts he suggested to Woodside alternative locations, some that might have even proven to be cheaper, but told they were unsuitable.[40]

The effect of these divergent interests has been complicated further through litigation pursued by Roe against the KLC.[41] Roe claims that the KLC misled the traditional owners with insufficient information so that many had not been aware that the in-principle agreement had been arrived at in April 2009.[42] Roe’s claim was recently dismissed and he has sought leave to appeal.[43] The disruption and harm that this legal action has caused to the project’s progress could have arguably been avoided, had a proper consultation process been carried out in the first place to accommodate the diverging interests and ensure all Indigenous voices were heard.

Accommodating divergent views is not a novel concept to the Western legal system; the common law adversarial system is geared around resolving disagreement between multiple parties. Yet the WA Government has evidenced an unwillingness to sufficiently accommodate the different native title interests, on the basis that the latter interests are apparently irreconcilable. This is despite the NTA Act itself allowing for the recognition and co-existence of divergent native claims within one area.[44]

Right to participate in decision making and the need for prior, informed consent

The rushed process of consultation driven by non-Indigenous interests raises the issue of the unlikely possibility that three months would have ever allowed enough time to reach an agreement based on informed consent. The lack of opportunity for traditional owners to participate in discussion is at odds with the United Nations Declaration on Rights of Indigenous People (‘UNDRIP’).[45] UNDRIP emphasises the involvement of Indigenous people in economic decision-making as a right,[46] and the necessity for States to operate in good faith to obtain ‘free, prior and informed consent’ before adopting measures which may affect Indigenous people.[47]

The LNG hub debacle reflects how the efforts of the WA Government and Woodside fall short of what should be expected in this area. For example, their efforts are inadequate compared to the approach by mining company Hamersley Iron Pty Ltd in the early 1990s. Hamersley established a negotiation framework in which the diverging native title claimant groups were given an integral role, with Aboriginal elders appointed as scrutinisers, and informed consent was reached after a 2 year period in relation to a mining site in Pilbara.[48] Similarly, a mining company in North America recently signed an agreement with Indigenous people to gather information about traditional sites and knowledge to assess potential impacts on these sites and knowledge.[49]

Conclusion

Although there are divergent views among the different groups of traditional owners, it appears that the ability of Woodside and the Government to garner support for the project, unified or not, has been hampered less by incompatible aims and more by a flawed, inadequate and rushed consultation process. Given that no group opposed the LNG hub completely, this emphasises that there was in fact space to accommodate their divergent interests. Instead, now Bergmann of the KLC, having originally backed the WA Government’s proposal is thoroughly disappointed with the way it has been managed.[50]

The twofold assumption that Indigenous people will always be opposed to land development, and will necessarily align with environmental interests, only serves to over-simplify the situation. Instead of assuming that Indigenous people would never consent to economic development where it involves development of traditional land, and that any efforts to gain informed consent are therefore futile, traditional owners must be actively involved in every stage of the negotiation process and the State must ensure that it has obtained informed consent before any action is taken. Only time will tell if damage aused by the flawed consultation process can be undone.

Suzanne Mortimer is a 3rd year law and social science student at the University of Western Sydney. As part of the Aurora Project, she completed a 5 week legal internship at the Indigenous Law Centre.


[1] ‘Storm Brews at Browse LNG’, The Mining Chronicle (Perth, Western Australia), 1 May 2010, p. 6.

[2] Kimberley Land Council, ‘KLC Suspends Gas Negotiations’, Kimberley Land Council Newsletter (online), August 2010 <http://uploads.klc.org.au/2010/08/KLC-Newsletter-August-2010-pdf.pdf> ‘Storm Brews at Browse LNG’, above n 1.

[3] Ibid; Kimberley Land Council, ‘Sydney Protest: Setting the Record Straight’, Kimberley LNG Precinct Monthly Update (Broome), March/April 2010, 3; Joseph Roe, Goolarabooloo and Jabirr Jabirr say NO TO GAS 6 October 2009, Hands off Country <http://handsoffcountry.blogspot.com/2009/10/goolarabooloo-and-jabirr-jabirr-say-no.html> ABC, ‘Rushes to Riches’, Four Corners, 21 June 2010 <http://www.abc.net.au/4corners/content/2010/s2933084.htm> .

[4] Kimberley Land Council, above n 2; Kimberley Land Council, Traditional Owners Approval of Gas Site Dependent on Cultural and Environment Protections (15 April 2009) <http://klc.org.au/2009/04/15/traditional-owners-approval-of-gas-sitedependent-on-cultural-and-environment-protections> .

[5] Kimberley Land Council, above n 2; ‘Storm Brews at Browse LNG’, above n 1; ABC News, Impact of Native Title Split Unclear (online), 8 April 2010, <http://www.abc.net.au/news/stories/2010/04/08/2867173.htm> .

[6] Colin Barnett, ‘State Government to Trigger Land Acquisition Process for LNG Precinct’ (Media Statement, 2 September 2010) <http://www.mediastatements.wa.gov.au/Pages/default.aspx?ItemId=133948 & page=4> Amanda O’Brien, ‘I’ll take West Australian native land: Mr Barnett’, The Australian (Australia), 11 December 2008.

[7] ABC Kimberley, Protest at Broome Shire over Gas Hub, (online), 1 October 2010, <http://www.abc.net.au/news/stories/2010/10/01/3026812.htm?site=kimberley> The Australian Greens, ‘Compulsory Acquisition Wrong, Say Greens’(Media Release, 2 September 2010) <http://greensmps.org.au/content/media-release/compulsory-acquisitionwrong-say-greens> Save the Kimberley, Community Rally to Save James Price Point 16 October 2010, <http://www.savethekimberley.com/wp/community-rally-broome-16-ocober> .

[8] ABC Radio National, ‘WA Premier Defends Compulsory Land Aquisition’, AM, (online) 3 September 2010 (Colin Barnett) <http://www.abc.net.au/am/content/2010/s3001425.htm> O’Brien, above n 6.

[9] Save The Kimberley, What’s the fuss?: A Culture and Traditions Under Threat (2010) <http://www.savethekimberley.com/indigenous_issues.php> .

[10] ABC, ‘Rushes to Riches’, Four Corners, (online) 21 June 2010 (Debbie Whitmont) <http://www.abc.net.au/4corners/content/2010/s2933084.htm> .

[11] Department of State Development (WA), Precinct Details (19 May 2010) <http://www.dsd.wa.gov.au/7929.aspx> Beatrice Thomas, ‘New Doubt Over Future of Kimberley Gas Hub’, The West Australian (online), ABC News, Kimberley Gas Hub Site

Revealed,23 December 2008, <http://www.abc.net.au/news/stories/2008/12/23/2453898.htm> Government of Western Australia.

[12] Department of State Development (WA), above, n 11.

[13] Department of State Development (WA), Browse LNG Precinct:Public Information Booklet, (2010), <http://www.dsd.wa.gov.au/documents/NEW_Browse_LNG_Precinct_-_Public_Information_Booklet.pdf> , 4.

[14] ABC News, Kimberley Gas Hub Site Revealed (online), 23 December 2008, <http://www.abc.net.au/news/stories/2008/12/23/2453898.htm> .

[15] Ibid; Four Corners, above n 10;ABC News, WA Premier Defends Takeover of Kimberley Land for LNG Project (online), 2 September 2010, <http://www.abc.net.au/rural/news/content/201009/s3000609.htm> .

[16] National Native Title Tribunal, Application Summary – Goolarabooloo – Jabirr Jabirr Peoples 8 October 1999, <http://www.nntt.gov.au/Applications-And-Determinations/Search-Applications/Pages/Application.aspx?Tribunal _file_no=WC99/36> (original joint claim; registered but yet to be determined).Since the native title claims are yet to be determined, and the KLC is the representative body for the traditional owners, the relevant Indigenous Land Use Agreement is that of an alternative procedure agreement, as provided under sub-div D of the Native Title Act 1993 (Cth) (‘NTA Act’). See s 24DD.

[17] Wawrick Stanley, ‘Kimberley Gas Hub Deadline Extended’, WA Today (online), 1 April 2009 <http://www.watoday.com.au/breaking-news-business/kimberley-gas-hub-plan-deadlineextended-20090401-9jml.html> .

[18] NTA Act ss 233, 227. 24MD.

[19] Ibid, s 24MD.

[20] Land Administration Act 1997 (WA) s 152.

[21] NTA Act ss 24AA (5), 25-6.

[22] Ibid, ss 35-6, 36A-36C, 37-41.

[23] Barnett has now reportedly gone back on his original word, and declared that a larger amount of land must necessarily be acquired; see Vanessa Mills, Erin Parke and Ben Collins, ‘Premier Contradicts Himself on Area to be Compulsorily Acquired at James Price Point’, ABC Kimberley (online), 16 September 2010, <http://www.abc.net.au/local/stories/2010/09/16/3013671.htm?site=kimberley> .

[24] ABC News, Impact of Native Title Split Unclear, (online), 8 April 2010, <http://www.abc.net.au/news/stories/2010/04/08/2867173.htm> .

[25] Four Corners, above n 10;; Beatrice Thomas, ‘New Doubt Over Future of Kimberley Gas Hub’, The West Australian (Perth), 11 September 2008.

[26] Kimberley Land Council, Traditional Owners Approval of Gas Site Dependent on Cultural and Environment Protections, above, n 4.

[27] ABC Radio National, ‘Former Federal Court judge joins Kimberley fight’, Breakfast, (online), 10 February 2010 (Murray Wilcox) <http://www.abc.net.au/rn/breakfast/stories/2010/2815083.htm> Kimberley Land Council, above n 3.

[28] Save The Kimberley, above n 9; The Wilderness Society, What do Indigenous People Think About the Development Proposal? (2009) <http://www.wilderness.org.au/campaigns/kimberley/kimberley-lng-gas-plant-and-james-price-pointfaq-yourquestions-answered#what-do-indigenous-people> .

[29] Neil McKenzie, ‘T.O Calls for Premier to Respect Country and Culture’ (Press Release, 29 June 2010) <http://savethekimberley.com/blog/?p=643> .

[30] Patricia Karvelas, ‘Land Council Boss Flays Green’, The Australian (Sydney), 2 June 2010.

[31] The Wilderness Society Queensland Inc, ‘Abbott Policy Wildly Off Course in Scrapping River’ (Media Release, 2 August 2010) <http://www.wilderness.org.au/campaigns/wild-rivers/abbott-policy-wildly-off-course-in-scrapping-river> Noel Pearson, ‘Decision is in: Wild Rivers Laws Stink’, The Australian (Sydney), 2 October 2010.

[32] Wilderness Society, ‘North Queensland Indigenous Groups Reject Abbott’s Intervention on Wild Rivers’ (Media Release, 29 September 2010) <http://www.wilderness.org.au/files/Abbottsanti-Wild-Rivers-Bill-a-statement-by-Traditional-Owners.pdf> .

[33] The Wilderness Society and Wik Projects Inc, ‘Conservation and Indigenous Partnerships Key to Future of Cape York’ (Joint Media Release, 24 June 2009) <http://www.wilderness.org.au/regions/queensland/conservation-and-indigenouspartnerships-key-to-future-of-cape-york/?searchterm= wik projects.>

[34] Department of Primary Industries, Parks, Water and Environment, Consultation – Bay of Fires Boundaries 22 April 2010, <http://www.dpiw.tas.gov.au/inter.nsf/WebPages/EKOE-7WR5BQ?open> .

[35] The Wilderness Society (Tasmania) Inc and Environment Tasmania Inc, ‘Bay of Fires Conservation Proposal Endorsed by Conservation Groups’ (Joint Media Release, 25 May 2009) <http://www.wilderness.org.au/campaigns/forests/bay-of-fires-national-park-proposal-endorsed-by-conservationgroups/?searchterm= bay of fires> .

[36] Kimberley Land Council, above n 3.

[37] Frank Parriman, Message to the PM: Get Real About Long-term Solutions or it’s a No-show (23 October 2009), Kimberley Land Council <http://klc.org.au/2009/10/24/message-to-the-pm-getreal-about-long-term-action-or-it%e2%80%99s-a-no-show> .

[38] Roe, above n 3; ABC, above n 3.

[39] Ibid.

[40] Ibid.

[41] Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809.

[42] Roe, above n 3.

[43] AAP Newswire, Compulsory acquisition puts WA gas hub at risk: KLC, (online),3 September 2010, <http://www.industrysearch.com.au/News/Compulsory-acquisition-puts-WAgas-hub-at-risk-KLC-46601/> .

[44] NTA Act s 224(a); Graeme Neate, ‘Land rights, native title and the 'limits' of recognition: getting the balance right?’ [2009] FlinJlLawRfm 1; (2009) 11(2) Flinders Journal of Law Reform, 1, 155.

[45] United Nations Declaration on Rights of Indigenous People, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Agenda item 68, Supp No 49, UN Doc A/RES/61/295 (2 October 2007).

[46] Ibid art 18.

[47] Ibid art 19.

[48] Peter Egglseton ‘Gaining Aboriginal Support for a New Mine Development and Making a Contribution to Sustainable Development’ (Paper presented at Energy and Resources Law 2002 Conference, Edinburgh, Scotland, 14-19 April 2002) <http://www.riotinto.com/documents/Media-Speeches/IBAScotland180402.pdf> .

[49] Indigenous Peoples Issues and Resources, Orion South Diamond Project Information Gathering Agreement Reached With The Three Bands Of The James Smith Reserve 20 August 2010, <http://indigenouspeoplesissues.com/index.php?option=com_content & view=article & id=6363:orionsouth-diamond-project-information-gathering-agreementreached-with-the-three-bands-of-the-james-smith-reserve & -catid=52:north-america-indigenous-peoples & Itemid=74> .

[50] Kerry Klim, ‘Kimberley Land Council says government takeover a David and Goliath battle’, National Indigenous Times (ACT), 16 September 2010, 5.