The proposed—and seemingly doomed—gas hub at James Price Point has been a kind of Rorschach test, reflecting observers’ ideological leanings back to them. Accordingly, when in early April Woodside Petroleum announced it would shelve the project, this news was cast both in tragic and triumphant terms.
For years the gas hub had been the epicentre of debates about the environment, Indigenous heritage and the societal impacts of economic growth—about the future of the Kimberley, and also of Australia. The conflict about the project extended beyond the region and some days it seemed the whole nation was arguing about this remote coastline in Western Australia’s northwest.
Supporters of the project, such as Western Australia’s conservative government, saw the project as a boon which would provide the Kimberley with a much-needed economic base. Opponents cited the darker side of economic growth, fearing the region would become an industrialised outpost and Broome would be reduced to a congested fly-in-fly out centre like the mining towns of the Pilbara. There were also serious environmental concerns emphasised by groups like the Wilderness Society.
Before examining some of the competing discourses at play, it is helpful to explore, in the positivist Rankean phrase, what actually happened, or at least one version of it.
In particular, commentary about the gas hub revealed widespread confusion about the operation of the Native Title Act, the ‘deal’ between Indigenous people, Woodside and the State of Western Australia, and intra-Indigenous divisions. A closer look at the legal basis for the negotiations that took place sheds some much-needed light.
Development, Negotiations, and Litigation
The story started in earnest in February 2008, when the WA and Commonwealth governments agreed to assess locations for a liquefied natural gas (LNG) processing facility for the Browse Basin reserves off the Kimberley Coast. The WA Labor government’s Treasurer and State Development Minister Eric Ripper promised a gas hub would ‘only go ahead with the informed consent of Aboriginal people and with their substantial participation’.
This plan took a sharp turn sideways with the election of a Liberal-National WA government in 2008. That December, Premier Colin Barnett announced that the search for a location would be discontinued and the plant would be built at James Price Point. Barnett emphasised that the gas would have to be processed onshore to maximise local employment and enable his government to impose a 15 per cent domestic gas reservation requirement as a de-facto royalty.
The area designated for the hub lay within the registered Goolarabooloo/Jabirr Jabirr (GJJ) native title claim, represented by the Kimberley Land Council. Under the Native Title Act registered claim groups (and groups which have been determined to hold native title) have rights in respect of activities within the claim. These rights range from the very limited, such as the right to be notified, to the strongest: the right to negotiate.
Where the right to negotiate applies (such as where the WA government proposes to grant a mining lease or to compulsorily acquire land), all parties—the relevant government, native title claimants or holders and the person or company seeking the interest in land—must negotiate in good faith within a six month period. Agreements reached about one interest in land will often bind claimants to facilitate the proponent’s overall project by requiring that they not object to any future approvals.
Indigenous groups are no more homogenous than their non-Indigenous equivalents, yet divisions of opinion within claim groups often attract attention. In the instance of James Price Point there was much interest in the opposition of one claimant, Joseph Roe, to the gas hub. In an open letter to the project’s joint venture partners in 2011, Roe warned, ‘your company needs to understand the storm it is headed toward here and pay more attention to the alternative options for Browse gas processing that do not include the Kimberley coast’. Others within the claim group disagreed. In a late 2012 episode of Q&A, Jabirr Jabirr elder Rita Augustine challenged former Greens leader Bob Brown, saying:
The money we will get if the project goes ahead is not going into our back pockets. We are going to use it to save our people’s lives and our culture through education, jobs and better health and housing. Is that too much to ask for? I know you care about the whales and dinosaur footprints, but what about us?
In seeming puzzlement, host Tony Jones noted that ‘we’ve got two completely competing positions on this’.
Divisions of opinion within the GJJ group were often cast in simplistic, symbolic terms. To gas hub opponents, Roe emblematised the authentic voice of traditional ownership, and supporters of the hub lauded the majority’s ultimate decision to support the project as evidence of a thriving black capitalist spirit. Propelled by this narrative, some commentary suggested the existence of two distinct claim groups. This was not the case: initially there was one sole claim group and the word ‘Goolarabooloo’ was, as the Federal Court noted recently, ‘a family name rather than a tribal name, referring to the descendants of Joseph Roe’s grandparents’. Thus the ‘claim by the Goolarabooloo to hold native title … depends on the incorporation of that family, through Paddy Roe, into Jabirr Jabirr society’.
In April 2009, the state, Woodside and the Kimberley Land Council (acting on its own behalf and as agents for the GJJ claim group) signed a preliminary Heads of Agreement setting out the principles under which negotiation would take place. Alongside these discussions flowed a steady stream of litigation. In 2010, Roe unsuccessfully brought legal proceedings challenging the Kimberley Land Council’s authority to represent the group in the negotiations, seeking to overturn the Heads of Agreement.
A native title claim group represents a single legal actor, and within such groups there are ‘named applicants’ authorised to act on the claim’s behalf. Roe was one such applicant and his signature was therefore required on contracts entered into by the GJJ claim group, but it appears he would not sign any agreement consenting to a gas hub. In May, a separate claim was commenced in the name of the Jabirr Jabirr people only, although the membership of the GJJ claim remained the same. Four Corners reported in June 2010 that the Jabirr Jabirr claim had been lodged ‘to challenge Joseph Roe’ or to avoid the need for Roe to sign any agreement with Woodside. A simpler solution prevailed. The Native Title Act provides a mechanism for applicants to be changed, and in February 2011 the Federal Court upheld the GJJ group’s action to replace Roe. He was not removed from the claim group itself, but his signature would no longer be required on agreements entered into by the GJJ claim group.
Meanwhile, negotiations continued against the looming threat of the state’s application to compulsorily acquire the relevant land, a process which would extinguish native title rights. In September 2010, notices were issued to begin the acquisition, and in June 2011, the claimants assented to the project (voting 164 in favour and 108 against) and entered into an agreement with the State of Western Australia, Woodside and the Kimberley Land Council.
The agreement provided the claimants’ consent to the gas hub and was reported as conferring $1.5 billion in benefits, not only to the GJJ claim group but also to other Kimberley Indigenous people. The state’s contribution included $256 million to be used for economic development, housing, education, preservation of cultural heritage and the creation of jointly managed heritage areas, as well as a land package. The benefits would not flow immediately; most were contingent on either the acquisition of the necessary land or the date Woodside was secured.
In early 2011 Roe and others lodged a separate, unregistered native title claim on behalf of the Goolarabooloo, seemingly seeking another legal vehicle to protect the area by opposing the gas hub. The membership of the GJJ claim remained the same, and there were now three separate claims in the area, of which only the GJJ claim was registered and had procedural rights. Also in 2011, the Supreme Court found that the notices for compulsory acquisition of the land designated for the gas hub were invalid. Embarrassingly for the WA government, replacement notices issued in 2012 were also later found not to have complied with procedural requirements.
In April 2013 Woodside announced that the onshore gas hub project was no longer financially viable and could not proceed in its current form. Subsequently, Woodside signed an agreement with Shell to evaluate the possibility of developing floating LNG technology to process the gas offshore. In the wake of Woodside’s announcement, the Federal Court dismissed an application by the GJJ claim group to discontinue its native title claim, apparently made in an effort to resolve internal conflict. The registered GJJ claim remains active, together with the separate unregistered Jabirr Jabirr and Goolarabooloo claims. Proceedings brought by Roe challenging the June 2011 agreement’s validity have not yet been determined by the Supreme Court and are therefore ongoing. The state government is persevering with the acquisition in the hope the project will become viable in the future.
Tell Me a Story
The messiness and complexity of these details was smoothed over in many media reports. Shorn of the morass of contested fact and law, the gas hub lent itself to simple stories, each containing its own grains of truth. These narratives were oppositional, with the project representing a clash between tradition and modernity, nature and economic development, and Indigenous self-determination and environmentalism. This last binary proved particularly attractive to the gas hub’s supporters, and buttressed a broader narrative which frames market capitalism as a liberating force and environmentalists as misanthropes.
The sense that the gas hub represented the only hope for the Kimberley’s Indigenous residents percolated through the media, reinforcing a persistent confusion of initiatives to assist Indigenous people generally and agreements entered into under the Native Title Act by groups holding proprietary rights. In 2010, Barnett stated rhetorically:
High rates of unemployment … poor education, poor health standards … domestic violence, abuse and neglect of children. Am I as the Premier of Western Australia going to sit back and say I’m going to give up the opportunity to help those people?
To oppose the gas hub was to refuse to ‘help’. Another received wisdom was the existence of a simple ‘black vs green’ dispute over the gas hub, along with a sense that there was something peculiarly ironic about conflict between environmentalists and Indigenous people.
These notions fitted seamlessly into the cultural war waged by The Australian and analysed by Robert Manne in his 2011 Quarterly Essay Bad News. When pernicious left-wingers were not sneering at battlers, dabbling in postmodernism or furthering a ‘black armband’ approach to history, they were stubbornly preventing Indigenous economic empowerment. This was emblematic of a broader argument deployed to counter the global imperative to reduce carbon emissions: that environmental protection will unfairly impact on the poor and is therefore elitist.
In 2010, one Australian editorial charged ‘[g]iven the abject poverty and lack of opportunity that has dogged remote Aborigines for generations, the meddling of those who would stop the gas hub is unconscionable’; another concluded ‘[i]f the gap between remote Aborigines and other Australians is to close, such projects need to proceed’; the Daily Telegraph considered the GJJ claimants’ entry into the June 2011 agreement ‘a major slap in the face to environmentalists’.
This was not all hyperbole, for there was conflict. In 2010, then-Kimberley Land Council CEO Wayne Bergmann accused groups such as the Wilderness Society and Save the Kimberley of ‘dirty politics’, suggesting they failed to ‘understand the dishonesty of arguing against traditional owners’ informed consent on the basis that the decision to develop … will destroy Aboriginal culture’.
Given the agreement that had been reached, the very name Save the Kimberley seemed unfortunately to suggest that the region needed protection from its own traditional owners, and the focus on the ‘pristine’ nature of the coastline and its ‘wilderness’ status appeared rhetorically to erase its human history. In 2012, then-MLA for the Kimberley Carol Martin, the first Indigenous woman elected to an Australian parliament, criticised those who did not respect the GJJ claimants’ decision, stating:
Aboriginal people need to take control of their own destiny … Aboriginal people have been colonised so many bloody times: first, by the British; second, by the do-gooders; third, by the missionaries; fourth, by industry; and now, by the bloody greenies!
In the wake of Woodside’s decision not to proceed, Rita Augustine expressed feeling ‘betrayed’ by the company, but also ‘let down by some of my people here in Broome and the outsiders who came in the protest against us … We are only a small group of people and yet we had just about the whole world against us’.
Observers occasionally draw adverse conclusions from claimants’ seeming willingness to ‘make deals’ with developers, and it is worth emphasising that the Native Title Act contains no right of veto and that the incentive to reach an agreement is compelling. If parties fail to agree within the six-month negotiation period, a determination can be sought from the National Native Title Tribunal as to whether the lease or other interest can be granted. In making a determination, the Tribunal must consider, among other things, the interest’s ‘economic or other significance’, and the conditions it can impose are restricted: it cannot make a decision entitling claimants to payments calculated by reference to profits made, any income derived or any things produced. The Tribunal can only make a determination if the parties have negotiated in good faith; many claimants have lodged challenges on this basis, but the onus to establish that a party has not so negotiated is high. It is perhaps unsurprising that only three times in the past two decades has the Tribunal ruled against a development where procedural requirements have been satisfied.
In short, flat-out opposition to a development is generally an unattractive prospect. As there is virtually no ability to stop a project, claimants will usually negotiate, seeking to minimise and mitigate damage to country and secure as much protection of cultural heritage and as many benefits as possible. This approach will necessarily differ from that of environmentalists who do not face these constraints. In effect, the system coerces claimants into doing deals. To then be derided for ‘selling their heritage’ adds insult to injury.
The Public Good?
The WA government was never a neutral party—its support for the project was quasi-evangelical, powered by the presumption that the interests of the public, Woodside, and the GJJ claimants (and Kimberley Indigenous people more generally), coalesced. The Premier thus declared that the June 2011 agreement was ‘an important act of self-determination that will generate real economic opportunities and real jobs for Indigenous people’. This language seemed particularly cynical given claimants’ limited options: ‘self-determination’ is an inapt descriptor for a decision made in the face of compulsory acquisition and under the restrictive Native Title Act. Further, the assumption that socio-economic improvements for Indigenous people in remote areas are to be secured through surrender of or damage to property rights is disturbing.
For those celebrating the project’s end, the rider that claimants should still receive the agreement’s benefits package seems a reflexive afterthought. Jabirr Jabirr spokesman Warren Greatorex has been quoted responding that this ‘sounds like a great idea in fairyland, but we are realists. If this project doesn’t go ahead here, we get nothing’. This analysis might not be strictly accurate. Should the land be compulsorily acquired, it has been reported that the state would pay claimants $30 million in compensation, and a Woodside spokesperson recently stated that the company had ‘already made $3.7 million in milestone payments … and delivered on some of the Indigenous employment and training initiatives’. This is, however, a great deal less than the original $1.5 billion package and the disparity between these sums seems particularly stark given the conflict and stress reportedly endured by GJJ claimants.
It is rather disingenuous for gas hub opponents to argue claimants should still receive the package, as this is decidedly not how contracts work. Agreements under the Native Title Act which provide benefits generally do so on the basis that native title claimants or holders should be compensated for damage to country and infringements on rights and that they deserve a share of the profits from developments within their claim. From a legal standpoint it is therefore difficult to see why payments should be made to a group in consideration for consent to a project that takes place entirely outside their claim area, if at all. The suggestion that benefits should flow regardless arguably results from conceptual blurring between payments via agreements negotiated under the Native Title Act and social welfare. The state government has put itself into an awkward position with its own rhetoric, which seemed to suggest the fate of all Kimberley Indigenous people hung on a decision foisted upon a single claim group.
It is inarguable that many Indigenous people, in the Kimberley and elsewhere, experience extreme disadvantage, but it does not follow that agreements relating to their property rights should be subordinated to this broader need. Recall that the agreement signed by the GJJ claimants authorising damage to their country and loss of rights included benefits not only for the group, but also for other Kimberley Indigenous people—an act of altruism (whether voluntary or not) that would be unheard of elsewhere in property law.
Fundamental questions remain. Why should needs, such as housing, for Indigenous people in remote areas be contingent on damage to their (or others’) traditional country? Why have the false binaries of development and culture, environment and economic empowerment, been so widely accepted? Why has there been so little exploration of, in Jon Altman’s terms, alternate forms of ‘hybrid economy’ that encompass elements of both? These questions must not be swept aside in the rush to draw conclusions, or subsumed by the general sense of crisis that infects public discussion of ‘Indigenous affairs’. In our public conversations about industry, development and black economic empowerment, we need informed, critical debate rather than a smoothed over consensus.
Sarah Burnside was a native title representative body lawyer from 2007 to 2010. Views expressed here are her own. She has also written for The Age, Crikey and New Matilda.