Broome gas processing hub
The latest in the ongoing dispute over a proposed $35 billion gas processing hub in Broome.
Last week, the WA Supreme Court ruled that compulsory land acquisition notices issued by the WA government are invalid.
Is the decision a fundamental game-changer or a temporary set-back?
Damien Carrick: Now to the ongoing dispute over a proposed $35 billion gas processing hub in Broome. Last week the WA Supreme Court ruled that compulsory land acquisition notices issued by the WA government are invalid. Local Indigenous man, Phillip Roe, who took the case to court, says the decision is a big victory for the people of Broome.
Phillip Roe: The ruling today at the court...and it took maybe two minutes or something...it was a great outcome, so I was very happy, very pleased. It's a victory that we were waiting for, now we can really go back and concentrate on the next step. It was something that had to be done. We are there to protect our heritage, our culture, our song-lines, and the law-grounds, and our country. We fought it for our cultural reasons but it is for the whole of Broome.
Damien Carrick: But also speaking after the ruling, Premier Colin Barnett said the decision was only a minor temporary setback.
Colin Barnett: It doesn't mean a great deal. When the original notice of intent to acquire the land was issued, an area of some 7,000 hectares was delineated. That was to allow some flexibility for where the final 3,500 hectares would actually be. What the court said it is you have to actually identify the exact 3,500 hectares. That can be done, it will be done, so the state government will simply reissue the notice of intent on the 3,500 hectares which is now identified as the exact site of the LNG plant, and we'll do that early in the new year.
Damien Carrick: But not everyone sees the decision that way. Murray Wilcox is a former judge of the Federal Court. He is opposed to the gas hub development, and supports the position held by the Roe brothers, Phillip and Joseph.
Murray Wilcox: What is proposed is that gas which comes from offshore in the Browse Basin, which is 300 to 400 kilometres away from the Dampier Peninsula immediately north of Broome, will be piped to the Dampier Peninsula, and it will there be processed. The gas needs to be purified, and then it is put under great pressure to turn it into a liquid, and then it would be exported, mainly to Asian countries, predominantly I suppose China, Japan and Malaysia. So the entire work would have to be done onshore at James Price Point, north of Broome.
Damien Carrick: The local Indigenous community is deeply divided over the issue. Can you briefly sketch out for me the different camps?
Murray Wilcox: Yes, the area is very important in Aboriginal traditional law and custom. There is a song-line that runs down the Dampier Peninsula coast and that would be destroyed really by the gas hub because the gas hub obviously has to be right on the shore and the pipeline is coming ashore and the tankers have to pick up from the shore. That would mean that the song-line is disturbed over a considerable period for quite a few kilometres, and I think that effectively it will destroy it. The area is also one that has particular importance to the Aboriginal people as a place where they have traditionally gathered, and there are burial sites there, there are middens, and it's quite important in Aboriginal law and custom.
I think all of the Aboriginal people of the Dampier Peninsular are conscious of the significance of the area, but some of them have accepted an argument that's been put to them by the West Australian government that this is the only way they will get financial benefits that will enable them to improve their health, the education of their children and find jobs. The people on the other side of the argument, they are being asked to give away their culture and their history, and for benefits which are provided to other people in the Australian community by government without having to give away that benefit. In other words, we don't expect to have to give up our cultural or religious beliefs to have adequate healthcare, education for our children and so on.
Damien Carrick: So the Kimberley Land Council, the native title representative body, it supports the plan, and on the other side of the argument you have people like Phillip Roe, a traditional owner who is opposed to it. Is that right?
Murray Wilcox: Yes, you're right, the Kimberley Land Council has been in favour of the plan and indeed they have had a role in persuading other people in the Indigenous community to support it. On the other side actually the leader is Joseph Roe who is the grandson of a legendary character called Paddy Roe who had a lot to do with keeping the Aboriginal people in that area together and who set up a nine-day walk every year tracing along the song-cycle, and that is now attended by some hundreds of people. Joseph has stood against the idea. He says that the cultural damage would be so important that no benefits can pay for that, and he also puts the argument that it's not right that people should have to give up their birthright for the sake of the benefits that are talked about.
Damien Carrick: Mr Roe and another Indigenous man, Neil McKenzie, they went to court to challenge the process by which the land has been compulsorily acquired. What specifically were they challenging and what specifically was the decision of the Supreme Court of WA last week?
Murray Wilcox: If you look at the legal title for this area, it is Crown land. However, it is subject to native title claims. Joseph Roe and another person put in a native title claim back in the mid-'90s, and that claim was still outstanding when talk about the gas hub commenced about three or four years ago. The problem was then that in order for this to be developed, somebody would have to get rid of the native title rights or alternatively get agreement by people who had the native title to surrender their rights in favour of the gas hub.
One problem was that it has not yet been determined who is entitled to native title. And one of the problems about it in my view is that the Kimberley Land Council has not undertaken a proper process of sorting out who are the relevant people to hold the native title. And that has meant that meetings have been held, they've been very acrimonious, as to who should be there, some people claiming that people who were entitled to be there have been left out and people who were there shouldn't be there.
In any event the Kimberley Land Council entered into a preliminary agreement with the government and Woodside Energy, which is the only one of the Browse Basin partners that has shown any enthusiasm for using James Price Point. There wasn't an immediate likelihood of any agreement about native title, so the government gave notice of intention to compulsorily acquire the native title. It is possible for a state government to do that, even though the native title is held under Commonwealth law, providing it goes through a procedure similar to that which applies if they acquire freehold land from somebody else for public works.
The minister gave notice of intention to acquire the land, but his problem was that they hadn't sorted out where the various facilities would be and how much land would be acquired. So what happened was that the notice of intention set out a very large area of land and said, well, we will pick the actual areas out of this larger area that is being specified. And the claim that was made by Roe and Neil McKenzie was that that didn't comply with the requirements of the West Australian legislation that said that the minister must give notice of the land required.
Damien Carrick: And last week the Supreme Court of WA, the Chief Justice of the Supreme Court Wayne Martin, he agreed with Roe and Neil McKenzie.
Murray Wilcox: That's right. He said that the notices of intention to acquire, they were invalid. There were three different notices covering different areas, they all suffered from the same problem, the very large area and then the notices themselves said that only some of this will be taken. The Chief Justice said, look, taking people's lands rights is so important that you have to be specific, you have to identify the particular land. That's what the Land Acquisition Act of Western Australia required and that hadn't been done.
Colin Barnett: We except the court decision and we will reissue the NOIT to exactly delineate the area of the LNG site. And our arrangement and the deal, if you like, struck with the Aboriginal people remains in place. And bear in mind, this is the biggest act of self-determination for Aboriginal people in Australian history. It will generate not only jobs and training but a $1.5 billion in community benefits over the life of the project.
Damien Carrick: As we heard earlier, WA Premier Colin Barnett says the court decision isn't all that important. He reckons that the state government can simply reissue the compulsory acquisition notices on a smaller boundary of about 3,500 hectares, a boundary which is more defined and it's clear what will be built where. Do you think he's right?
Murray Wilcox: It is certain that he would have to do that. Whether the government and Woodside have sufficiently worked out what the necessary land boundaries would be, I do not know. But plainly they have to issue notices which relates to what they really want, not just a larger area out of which they will take what they really want. Mr Barnett is under the belief I think that he has only simply got to backtrack by issuing fresh notices. There's a very strong argument and it is held by the lawyers that have been involved in the case on behalf of Joseph Roe and Neil McKenzie that the backtracking has to be more extensive than that.
The reason for that is that an agreement was entered into after the notices were given. The agreement was between the claimants in the native title who had ousted Joseph Roe and his other claimants, so they have control of the native title claim at the moment. But they had entered into an agreement with the West Australian government for surrender of the native title rights on the basis that there would be a compulsory acquisition. Now, they did it under a particular situation where these notices had been given, the notices had been held invalid, and the argument that is put on behalf of the lawyers acting for Roe and McKenzie is that if the notices which were the foundation of the agreement were bad, then the agreement itself has to be renegotiated.
Damien Carrick: Is that your legal opinion?
Murray Wilcox: It's a very complex issue under the Native Title Act, and I wouldn't like to tie myself to a…
Damien Carrick: I guess what I'm asking is is it something that you would like to be the case because you have grave reservations about the process and about the agreement, rather than whether you think it is a legally strong argument.
Murray Wilcox: I think there's a strong argument. Whether it would succeed in the end, I find it a little difficult to say. I think it is virgin territory as far as courts are concerned, so I wouldn't want to be dogmatic about it, but I think there's a lot to be said for it. Because if you negotiate with somebody against a backdrop which turns out to be false, then there is a lot to be said...if you're talking about a statutory agreement, that that also has to be redone.
Damien Carrick: The views of course among the Indigenous people of the area do differ. On the one side you've got Roe and McKenzie, and of course they're very pleased by the decision. On the other side you've got people like Mervyn Maher who works for the Kimberley Land Council who has been quoted as being very disappointed by the ruling, and he says no need to go back and have a re-vote because nobody held a gun to our heads when we were having the discussions under the previous set of assumptions before this decision.
Murray Wilcox: Well, I find that a strange thing to say because the whole flavour for about two years has been that Mr Barnett is determined to get this land, and will if necessary compulsorily acquire it. He has said it on many occasions. And looking at what the Kimberley Land Council says, I simply repeat that a large part of this problem is their fault, they have not taken out a process of making sure that they've got the right people in the meetings rooms when decisions have to be made. This has been pointed out to them time and again, but they don't do it, and I think it's simply because the people who are running the Kimberley Land Council have set their minds on having this gas hub.
Damien Carrick: Views though do differ and there are many people on both sides of the argument.
Murray Wilcox: Oh yes, there are certainly people on both sides of the argument, and there are a lot of very decent Aboriginal people who sadly are divided by this issue. It's been quite acrimonious in the community and it's very, very sad.
Damien Carrick: Murray Wilcox, former judge of the Federal Court. That's the Law Report this week and indeed for 2011. Over the next five weeks on Radio National Summer you'll have the opportunity to hear some of our favourite programs from 2011.
Before I go, I'd like to say a big thank you to Erica Vowles, the program producer for most of the last two years. It's been really great fun working with her. And in 2012 Erica will be bringing her considerable skills to other programs here on Radio National.
- Murray Wilcox
- Former Federal Court Judge
- Kimberley Gas
- a special website featuring stories and photos by ABC Local Radio
- Damien Carrick
- Verica Jokic