By Deborah Ruiz Wall – http://newmatilda.com/2013/02/14/who-gets-develop-james-price-point

14 February 2013

As the push for economic development continues in the Kimberley, conflicting definitions of ownership remain at issue in the dispute over Woodside’s gas project, writes Deborah Ruiz Wall

Land use, economic development, Indigenous cultural heritage and environmental protection are at the heart of the Liquefied Natural Gas (LNG) Precinct dispute in the Kimberley. The Greens candidate for the Kimberley, Chris Maher wants to highlight the LNG processing plant as the central issue for the 9 March WA state election.

Walmadany-James Price Point, the chosen LNG Precinct site is subject to a joint native title claim by Traditional Owners, Goolarabooloo and Jabirr Jabirr. The fundamental principle for any economic development of Aboriginal traditional lands is Indigenous Full Prior Informed Consent (IFPIC), a policy that was adopted in the Declaration on the Rights of Indigenous People by the United Nations General Assembly Resolution 61/295 on 13 September 2007. Australia signed the non-binding Declaration in 2009. Consent is elusive because the Traditional Owners hold opposing views over the location of the LNG precinct site.

Most Jabirr Jabirr people support the project and welcome the economic development benefits that will accrue from it while Goolarabooloo people are against the chosen LNG site, preferring to defend their heritage sites that they regard as non-negotiable.

Under the Commonwealth Native Title Act (NTA) 1993, developers are required to negotiate with native title claimants or holders for the use of an Aboriginal land site. Two Aboriginal heritage sites, Walmadany DIA Site ID 13076 and Kundandu DIA Site ID 12902 had been registered (pdf) with the Department of Indigenous Affairs since the late 1980s.

These sites are located within the proposed LNG precinct boundary. Goolarabooloo has a custodianship role for these sites. Jabirr Jabirr’s support for the Woodside project focuses on the benefits they will receive in exchange for allowing the company to use their land for LNG processing. Jabirr Jabirir people argue that the benefits will give them economic independence and address Indigenous disadvantage.

If the $30-$40 billion project goes ahead, the precinct site will occupy 3414 ha of land at full capacity to be used for processing, a port, workforce accommodation, and light industrial areas. In 2009, the joint native title claim group agreed in principle to support the project. In June 2011, the group signed a native title agreement with Woodside and the Western Australian Government to grant Woodside land access in exchange for a range of financial and social benefits worth about $1.3-$1.5 billion.

Members of the Goolarabooloo and Jabirr Jabirr, Philip Roe and Neil McKenzie took legal action against the WA Government’s attempt at compulsorily acquiring the site. The Supreme Court found in December 2011 that the State’s “Notice of Intention to Take” was invalid for insufficient details about the area of land to be taken. The WA government simply reissued a new Notice (pdf) with the required details. To ratify and implement the James Price Point agreement, it introduced the Browse (Land) Agreement Bill 2012 (pdf) which was passed in December 2012.

Goolarabooloo and Jabirr Jabirr, however, decided to terminate their joint native title claim in February 2013. The break up of the native title claim group may jeopardise the government’s guarantee of land access to Woodside. If both traditional owners are able to register their new claims successfully, the government is legally required to negotiate land access with both groups.

Development at James Price Point represents high stakes involving the interests of four main parties: the WA/Commonwealth Governments, Aboriginal native title claimants and the mining companies.

The WA Government put forward three main reasons (pdf) why LNG should be processed in the Kimberley: economic and social — to maximise the benefits the Browse Basin resource can offer through investment, business and employment opportunities; environmental — to minimise environmental impacts by avoiding ad hoc development and confining processing to a single site that will accommodate at least two LNG proponents; Indigenous — to create new sources of investment, business and employment and training for Indigenous communities.

The former Kimberley Land council (KLC) CEO, Wayne Bergmann referred to “Closing the Gap” in support of the Traditional Owners’ consent to the gas project. Other parties likely to be affected by the proposed development are Broome residents and small business operators. Some have formed local resistance groups such as “Families of Broome” and “Broome No Gas”.

“Broome No Gas” outlined its concern about social impacts: housing costs would escalate with an influx of casual workers to town; small business cannot compete with large company wages; increased HIV rates and possible transmission is particularly high if resource developments use overseas labour on 457 work visas; risks to calving humpback whales from boat strikes, noise pollution and spills.

Western Australia is a typical mineral economy. Mining represents a large proportion of the WA Gross State Product. Western Australia produced A$101.2 billion worth of minerals in 2010-2011 out of which the WA Government collected A$4.9 billion in mineral royalties (pdf).

The Indigenous estate’s share of the Australian continent has grown to over 20 per cent of the continent, as Jon Altman and his co-authors discuss here (pdf). The Indigenous sector’s “ownership” is vested in various ways under land rights and native title laws. The Indigenous estate that is generally extremely remote and have otherwise low commercial value is highly sought for mineral extraction. Indigenous people, who constitute 2.5 per cent of Australia’s population, do not share equitably in the wealth of the mining sector. Much of this wealth (pdf) is generated from their land in remote regions.

The question of development is linked with the question of who owns the land. The notion of “ownership” is perplexing. Under the Aboriginal Heritage Act 1972, a lessee from the Crown or a holder of a mining tenement has legal rights as the “owner of land” to give notice for consent to use land. Under the Native Title Act 1993(Cth), the native title claim group has legal rights as Traditional Owners such as “the right to negotiate”. This same land is Crown land that is “owned” by the State, pending native title determination.

From a cultural perspective, Goolarabooloo’s understanding of ownership is that ancestral essence flows “below the surface of the ground”. “Songs that contain the codes of behaviour” are fundamental to sustaining the balance and wellbeing of the land. Knowledge of the significance of the stories is likened to an authenticating passport for ownership of the stories of the land. That knowledge translates to mutual sustainability. If unsustainable industrialisation destroys the land, Goolarabooloo people believe that it will ultimately destroy all life.

Environmental groups such as Save the Kimberley, the Wilderness Society, Environs Kimberley, Australian Conservation Foundation (ACF) have aligned their environmental campaign with Goolarabooloo. Their resistance to the LNG Precinct at James Price Point is based on sustainable development. To illustrate, Martin Pritchard, Director of Environs Kimberley, told New Matilda that Aboriginal people have their fire skills “integrated with the science” and collect ant samples using a methodology that use data to correlate with the eco system and integrate with North Australian Indigenous Land and Sea Management Alliance Ltd’s (NAILSMA) eye-tracker system.

Wade Freeman, ACF Kimberley Project Officer told New Matilda that traditional knowledge is “prior knowledge” as traditional people had managed waterholes for their Country without any scientific training in water flows and geographical mapping.

Economic development, however, is the central plank of the Australian state. Through the Council of Australian Governments (COAG), the peak intergovernmental forum in Australia, the three tiered government lays out Kimberley regional economic strategies: exploring partnership opportunities (public and private) to promote industry development; working to encourage and support Indigenous employment in industry such as tourism, retail and hospitality; and governance development and on-going support and mentoring for Indigenous communities, organisations and businesses.

The KLC has a strong role in these regional partnership agreements as part of a Kimberley tripartite forum with the Commonwealth and State Governments.

Mining companies similarly are involved in infrastructure building via agreements struck with Indigenous beneficiaries as a trade off for access to their land. Deputy President of Broome Shire Council, Dr Anne Poelina portrays such arrangements as the government transferring its social responsibility for infrastructure building to mining companies. She told New Matilda that mining companies’ community activities are not philantrophic but are part of their social licence.

Bruce Harvey, Global Practice Leader of Rio Tinto explained that a social licence “reflects a (mining company’s) direct engagement and a direct broad-based social contract with the host community around social investment expectations from a mining company”. Meeting these expectations enables a corporation to obtain its legal licence from the government that then allows it to conduct its activities.

“Whether it’s the LNG plant or the coal plant or iron ore,” Broome resident and National Indigenous Times columnist, Ian Perdrisat remarked, “this development has got nothing to do with local people. It has got only to do with corporate wealth and governments getting taxes so they can shore up all of these developments… (Indigenous) people are pressured into taking these things at the risk of not having the same rights as other Australians.”

He stressed that these two issues of Aboriginal development and industrial development “need to be detached” because they are thrown together to justify the resource development.

The dynamics between power and freedom in relation to Indigenous consent, the sustainability of the ecosystem and cultural heritage, the need to integrate notions of “ownership” are some of the challenges the Government faces in its push for economic development through the industrialisation of the remote region of West Kimberley.