‘Law Below the Top Soil’ Walmadany (James Price Point) and the Question of the Browse Basin Gas Resources of North West Australia 1 The publishers wishes to advise members of the Kimberley Indigenous communities including the Yawuru, Goolarabooloo and Jabirr Jabirr people that this report contains the images and names of people who have passed away. 2 Paddy Roe, OAM; Nyikina, Goolarabooloo Elder; Winner of the Western Australian Literary Award, 1985; Shortlist, National Book Council Award 1985; Shortlist NSW Premiers Literary Award 1983; Shortlist National Book Council Award 1983. 3 “There is, especially in public life, no more beautiful a characteristic than truth. Truth is of its essence liberating; it is possessed of no contrivance or conceit — it provides the only genuine basis for progress. By overturning the lie of terra nullius, the notion that at sovereignty the continent was possessed by no one, the High Court not only opened a route to indigenous land, it rang a bell which reminded us that our future could only be found in truth.” Paul J. Keating, Lowitja O’Donoghue Oration, May 31, 2011. “Song cycles reflect the travels and creative activities of ancestral beings. Through song cycles, the creation stories, ceremonies, laws and rituals are passed between communities. The area covered by the Lurujarri Heritage Trail incorporates a vital segment of a wider mythology. Any adverse effect on the integrity of the area will have far reaching effects on Aboriginal people throughout the West Kimberley.” Elizabeth Bradshaw & Rachel Fry, A Management Report for the Lurujarri Heritage Trail, Broome, Western Australia, Western Australian Museum, May 1989, p. 7 “Once you break the snake {the dreaming track from One Arm Point to La Grange} in half its gone forever.” Joseph Roe, ABC 4 Corners, 21 June 2010 4 The 80 kilometre Kimberley Coast Lurujarri heritage trail put forward by Paddy Roe, incorporating Walmadany (James Price Point), from E. Bradshaw & Rachel Fry, “A Management Report for the Lurujarri Heritage Trail, Broome, Western Australia”, Department of Aboriginal Sites, Western Australian Museum, May 1989 5 The Lurujarri Trail with a very minimalist impression of the port and industrial dimensions of the LNG Liquefaction plant imposed.1 Note, this shows only the entry point of the 12 pipelines to be located in 14 trenches 2 metres deep in the ocean floor, within a 500 metre corridor stretching out 390 kilometres2 and many other details. For more see pp. 75-92 1 Strategic Assessment Report (SAR), Part 5, pp. 4-39 2 SAR, Vol 3, pp. 2-33. Also see SKM, Benthic Habitat Calculations, 2011, SAR, Appendix g-2, p. 25 6 Table of Contents Foreword ...................................................................................................................... 8 Preface ....................................................................................................................... 10 Findings ..................................................................................................................... 11 The Principle of Indigenous Free Prior Informed Consent (IFPIC) ......................... 13 Introduction: “An Unremarkable Place” ................................................................... 15 Representing Aboriginal Rights: Traditional Custodians & Law, Native Title Law & Elected/Appointed Representatives............................................................................. 18 Sitting Pretty? The KLC, the Carpenter Government and Inpex ............................... 26 Law below the Top Soil .............................................................................................. 38 “The Saudi Arabia of Natural Gas”........................................................................... 56 David, Goliath & an Independent Indigenous Economic Vision for the Kimberley .. 60 Tick the Box ............................................................................................................... 74 Conclusion: The Lessons of Walmadany ................................................................... 91 Alternatives to the LNG precinct ......................................................................... 94 Lurujarri Heritage Trail ....................................................................................... 94 The Political Situation ......................................................................................... 97 Satyagraha........................................................................................................... 97 Consultations with Aboriginal Australians........................................................... 98 The Strength of Saying No & Taking on ‘Compulsory Acquisition’ .................... 99 Aboriginal Compensation, Reparations, Royalties and Investments in the Future .......................................................................................................................... 101 Native Title. ...................................................................................................... 102 Select References ..................................................................................................... 104 7 Foreword Law Below the Top Soil will stimulate a much needed public debate. It presents a series of findings and recommendations to the Broome and wider Australian community which we fully concur with and are determined to follow through. Explicitly that the proposed James Price Point LNG precinct should never be built and that the Lurujarri Trail should be protected as a model of indigenous tourism for the future. Former Greens Senator Bob Brown stated the obvious when he said of Walmadany (James Price Point): “This beautiful place, with its historic song lines and deep, ancient indigenous heritage, is also a living ecological treasure that should not be destroyed by a massive gas processing factory.”3 Australians should regard this statement by Brown as not an extremist green view, but a view that would accord with thousands of people who come annually to the Kimberley coast from the southern cities of Australia and internationally and with the expectations of millions of ordinary Australians who care about our environmental and cultural legacy. Law Below the Top Soil finds that the process of consultation in relation to the proposed LNG liquefaction industrial complex at Walmadany (James Price Point) was fundamentally flawed. This complements the findings of an independent report commissioned by the Kimberley Land Council. 4 The principle of Indigenous Free Prior Informed Consent (IFPIC) was ignored. It also reinforces the decision of West Australian Supreme Court Chief Justice Martin that the process of compulsorily acquiring land from Goolarabooloo and Jabirr Jabirr traditional owners was unlawful5. The report also finds that there are more efficient and effective ways to harness the precious resources of the North-West than the model which would see an industrial complex built on the pristine Kimberley Coast, potentially the ‘thin edge of the wedge’ for industrialisation of the Kimberley. In this current resource boom with opportunity to capitalise on buoyant prices, the decision making process to develop country that has indigenous cultural significance should not be rushed. It is in Australia’s interests to clean up the processes of decision making and vested-interest oriented thinking that has driven the process to date. Australia needs to establish a process which honours honest, efficient, trustworthy and transparent mining and processing operations. In many ways our country’s future hinges on what happens next in the North-West. We have a choice between a future with great prosperity that creates a sustainable lifestyle for all Australians or a future where our natural and cultural assets are squandered for short term gain. It is an imperative for all Australians to become aware of the processes that are driving the development of the North-West, and we consider that this report should stimulate wider interest and understanding of the key issues. Above all, we hope it will provoke a much needed debate than has occurred up to this date about the proposed LNG precinct planned for Walmadany (James Price Point). We thank the author, Peter Botsman, for his hard work and dedication over the last 2 years. Save The Kimberley, October 2012 3 21 November 2010 4 KLC, Traditional Owner Consent and Indigenous Community Consultation: Final Report, 3 Sept 2010, p12-15 5 McKenzie-v- Minister for Lands [2011], WASC 335, Martin, CJ, 6 December 2011, CIV 1742 of 2011 8 9 Preface After the United Nations passed the Declaration on the Rights of Indigenous People on 13 Sept 2007, Indigenous Full Prior Informed Consent (IFPIC) (see p. 12)6 beccame the bottom line principle for any economic development of Aboriginal traditional lands. If this is absent then miners, governments and business interests do not have a mandate to proceed. This principle is fundamental for Australians to uphold7. In the case of Walmadany (James Price Point) it is clear that the decision to proceed with the LNG precinct did not embody this principle. This conclusion is shared by the Kimberley Land Council’s (KLC) own independent consultants8. Some of the questions that drove the research were: was the process of developing the project legitimate? What should the role of Indigenous political organisations be in relation to representing traditional owner’s rights and interests? What are the implications of failure to adhere to IFPIC for