This chapter examines the impacts that a shale gas industry would have on First Nations Peoples, specifically the Traditional Owners of the Beetaloo.
Several First Nations people—including Elders, community leaders, Traditional Owners and representative bodies—made submissions (verbal and written) and gave evidence to the inquiry. They raised a number of issues, which are outlined below.
Strong opposition to oil and gas activities on country
First, the committee heard that oil and gas exploration and production in onshore NT is a highly contentious issue, including in the Beetaloo, where there is strong and widespread opposition to the shale gas industry.
Mr Johnny Wilson, Chair of the Nurrdalinji Native Title Aboriginal Corporation highlighted that Traditional Owners in and around the Beetaloo do not support fracking in the region and consider that their voices have been lost in the process:
…a lot of money is being put into the Beetaloo Basin to get this program started, to get all this work started. Why? This is our country. We don't want it. We don't want any of this. We are very concerned because our country is going downhill. Our voices are not heard. We have grave concerns for our country, and our water especially. We have to live here. We have to live on our country. Our water is sacred to us. There are our sacred sites and our cultural heritage—everything. We are connected to our land. It is very disturbing that our government will not listen to us.
The committee notes that Mr Wilson lives in close proximity to a fracking well in the Beetaloo basin.
Other Traditional Owners agreed that water is a critical concern on Country, not just for drinking purposes but also for cultural and spiritual reasons. Ms Nancy McDinny, a Traditional Owner from Borroloola stated, for example:
Fracking is not good for our country, not good for our water… Our water was here from ancestors. Thousands and thousands of years ago people were living with this water, living on clean country… We've got to protect it and protect the water. You know, it's not good for the fracking to come down, we don't want fracking. We're arguing, talking and meeting every year, every year. People still want to come… We don't want any fracking, no mining in our country. We're gonna protect our country. Listen to the elders, know, how our land is so important to us.
Similarly, Ms Joni Wilson, a Yanyuwa Gawara woman from Borroloola and also a Gawara woman through her father's line, explained:
Country is important to me because it's my life; it is a part of my body, my soul and my spirit. It provides food, medicine, water and healing. It's important for my cultural connection to the land and my language, and the identity of who I am through my skin name. My skin determines how I fit into my clan. Country is important because I live off the land, like my ancestors did. It's my responsibility as a jungai, protector for country, as a traditional owner, to protect it with my people for the next generation to come. I want my kids to be able to practise, teach and learn on country, like I did and like my people did before me. Without our land and water, we are nothing and we are nobody.
Larrakia Traditional Owner, Ms June Mills, expressed her anger at having to fight to protect her family's country:
…why do we, the most disadvantaged people in the country, underprivileged, impoverished, lacking in all sorts of resources, why do we have to rally up and fight this assault on our environment, on our peoples against such an unnecessary evil? Which is [what] the government is hell bent on rolling out all across the country. It's disgusting. It's filthy. It's the most unnecessary industry that they are insisting and forcing upon us. It should not be allowed.
Mr Wilson also expressed his pain and frustration with government for not understanding the importance of Country to First Nations people:
We are crying for our country. This is our living. This is our life. This is left here by our Elders. My grandfather left my country here for my family to live, so that we may start off something of our own for our children—our business—so they could have something in the future for themselves. But how is this all possible if we have all these wells around our country?
Mr Yingiya Mark Guyula, a Yolŋu Elder from North East Arnhem Land and MLA in the NT Legislative Assembly, pointed out that there are cultural connections among First Nations people, which create responsibilities beyond geographically delineated areas to care for Country:
I want to voice concerns about oil and gas exploration in the Beetaloo Basin. The waters of this region are also considered significant through Yolŋu culture. Our song lines and our ceremonial songs sing about the underwater channels that connect the Beetaloo Basin country to Yolŋu country. We have great concerns for Fracking in this region and the spiritual, cultural and environmental impact it may have for our people. These connections through our song lines create an onus of responsibility to care for that country.
First Nations people emphasised to the committee that they come together to support each other on the issue of fracking in the Beetaloo, even when this is not their land. Mr Gadrian Hoosan, whose family is part of the McArthur Basin, said, for example:
We all support each other…We all get together and we all talk about all the issues together… I know for a fact that lot of those [Traditional Owners] around the Beetaloo area don't agree to fracking.
The committee notes that significant support for the First Nations people was expressed in well over a thousand form letter submissions, for example:
Aboriginal communities have been fiercely opposing fracking on their land for years. It is time we listened to their concerns. These are the people who will be directly affected by this proposal and to ignore their concerns is not the Australian way.
The First Nations people with a genuine spiritual connection to the land and what is under it do not want fracking.
The committee notes the deep cultural and spiritual links First Nations' witnesses provided in their evidence. In particular, their telling of the song lines, or in Yanyuwa known as 'Kujika', that travel across the Gulf country, north to Arnhem Land and south across the Barkly region, which links families and Country, strongly together.
There are a number of Commonwealth and territory laws that protect First Nations people, their land and their culture in the NT, including, for example:
the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act)
This Act gives Traditional Owners the right to be consulted about, and to consent or refuse to consent to, the grant of a petroleum exploration permit (EP) on Aboriginal land (see Figure 4.1); and
the Native Title Act 1993
This Act does not provide Native Title holders with a statutory right to veto the grant of an exploration permit. Instead, Native Title holders have the right to be notified and the right to contract with gas companies, including prohibiting certain areas of land.
Figure 4.1: The process for the grant of a petroleum exploration permit on Aboriginal land
Source: The Scientific Inquiry into Hydraulic Fracturing in the Northern Territory, Final Report, April 2018, p. 273.
Professor John Warburton from Empire Energy Group Ltd (Empire Energy) elaborated on Steps 4–6, as follows:
In fact, there are three phases in those meetings. The first phase is that the land council are responsible for ensuring that the traditional owners understand the implications of what they're hearing; the first meeting is between the land council and the traditional owners. The second phase is an opportunity for the company to present their proposal to the traditional owners and also seek independent questions, and also seek questions from the land council in terms of clarification. And then the third part of it doesn't involve the company; it involves the land council speaking with every one of the traditional owner representatives at that meeting to establish whether they consent to the activities they're hearing about.
As indicated earlier in this chapter, a key concern for First Nations people is that their strident and continued opposition to hydraulic fracturing in the Beetaloo is being disregarded and their voices are not heard. Mr Guyula reiterated that concern:
As a Member of the Northern Territory Legislative Assembly, I have spoken to many elders and leaders from the Beetaloo Basin who have expressed great heartache about the oil and gas exploration on their country. It is these elders and leaders who must now be consulted in relation to the future of production on their country.
In an open letter to the NT Parliament, Traditional Owners throughout the NT stated that they have not been consulted about hydraulic fracturing on Country:
These gas corporations lack any respect for us as Traditional Owners. They have failed to follow proper process in consultation with us, failed to acquire consent, failed to provide transparency in their dealings with us, and have systematically excluded our voices from the decision-making process for activities on our Country.
Many submitters and witnesses to the inquiry agreed that the consultation processes to date have not included all Traditional Owners and community members who should be consulted, and have therefore been inadequate. For instance, Mr Guyula stated:
The people down there in the Beetaloo Basin and around the western part of the Gulf of Carpentaria are concerned very much that we haven't been thoroughly, properly consulted. People haven't been consulted. I have in the past three years met a lot of [Registered Traditional Owners] from the Beetaloo Basin region who are very concerned about fracking on their country and do not want it. That is the clear message that they are saying with their voice, and someone needs to listen to their voice.
Ms Wilson was one such person and she told the committee that, in addition, her family did not receive any information regarding what was proposed for their Country:
We have not been given any information on this fracking thing. We have not given anybody permission for fracking. No one has come to us and asked us: 'Here's the paper. We want to do this on our land. No one has done this to us. If they did do it to my grandparents or great grandparents, they didn't know what the bloody hell they were signing. They didn't understand. If someone in plain English would say, 'Hey, here's a piece of paper to frack or to destroy your country,' I don't think my grandparents would have done anything. So, no, we didn't give permission. We didn't get any information—none of that. We just read it from news or Facebook. We get information from there. We never have people come to our place and give us information—nothing. No.
The Australian Youth Climate Coalition submitted that there has generally been an absence of Free, Prior and Informed Consent, a point emphasised by Nurrdalinji Native Title Aboriginal Corporation in its submission:
At present, Origin Energy is fracking our country under exploration permits granted some 15 years ago to other companies, and later assigned to Origin Energy. Our people did not understand what fracking was at the time they were advised to enter into agreements consenting to the grant of those exploration permits. How could they? The exploitation of unconventional gas reserves using extensive fracking was new and barely understood in Australia at that time. Many of our people are now worried about the risks of fracking.
The consultation process
The committee heard also that there are significant concerns regarding the current consultation process. Mr Guyula, for example, noted that consultations are often in the nature of a briefing only, and do not actually seek input from Traditional Owners:
…when the consultations first came out right up through Gapuwiyak here, I was there, and then we went to Yirrkala, and the consultations were done there. But people weren't happy, because it all seemed like just briefing, and then it was: 'What's next? What's it up to? When's our turn to have a say about that?'… We are not happy about what happened in the consultation… We've said, 'No, no, we need to have a proper consultation.' We believe it should happen again. Let the people have the final say or have a good discussion with the government.
Mr Guyula suggested that a better process would be for activity proponents to speak directly with Traditional Owners on Country:
Proper consultation would look like a kind of diplomatic talk. If you want to explore and create mining on land or fracking on country, there could be some organisations in between those people. Rather than talking to organisations that are advisory groups, we would like to see the government and the mining companies—the people who have business to do—come straight onto and talk to the actual [Traditional Owners]. It is the voices of the [Traditional Owners] that need to be heard by different companies.
Mr Nicholas Fitzpatrick, a Yanyuwa and Garawa man, agreed that 'it would definitely help better if they came out on the ground and spoke with people all together'.
A Traditional Owner at Minyerri, Ms May August, told the committee that she had twice travelled to Sydney to invite the CEO of Origin Energy to come on Country and discuss hydraulic fracturing in the region. Despite these personal requests 'they never showed up'.
Similarly, Ms Rikki Tanika Dank, a Traditional Owner for Balbrini and Mukumpala, and her husband, Dr Sanjit Paul, gave evidence that they had attempted to obtain information from Empire Energy for some years and although the company has recently attempted to speak with her family, they now consider any communications meaningless:
[Two months ago Empire came forward and said] 'We hear that you have an issue and we'd like to talk to you'… Our initial assessment of their proposal was that it was just a token gesture and was insincere because, at that stage, one well had already been sunk. So this wasn't even an eleventh-hour appeal to our case; the clock had struck had struck midnight a long time ago and the chariot had already turned into a pumpkin.
The committee notes that the Pepper Inquiry (see Chapter 1) recommended that the cultural impacts associated with the development of any onshore shale gas industry, including in the Beetaloo, must be fully explained prior to the development of that industry. Further, First Nations people must be involved in the design and implementation of any such plan.
Consultations by the land council
The committee heard allegations that the Northern Land Council (NLC) has not been performing its statutory duties, for example, as required under the Land Rights Act.
Ms Dank, for instance, submitted that, despite the devastating impact of Empire Energy's petroleum activities on Country, the right people in her family were not approached for consultation purposes:
…when things concern our country, people don't approach one person; they need to approach and have a meeting containing the senior ngimaringkis, which is both my grandmothers, Katie Baker and Peggy Mawson, and the senior djungai, the senior law person, which is my mother. At no time was my mother or Katie Baker present at…meetings.
Mr Fitzpatrick supported Ms Dank, telling the committee:
What's happening out there in that area where Rikki is definitely hasn't been done properly in the consultation. I can't say too much for that area, but I've got experience from my area. The NLC had meetings recently. They called it 'man meetings'. I went to this meeting. They only talked about a 'man' part of our law for about two minutes, and then everything else was about fracking. It was about giving the man power over the woman. True God. I said: 'This is not even a man's meeting. This is a meeting about fracking. This is about getting the man on board with fracking.' They were like: 'Oh no, no, no. That's not what's happening. This is a man meeting'—talking to someone who understands their cultural side very deeply, and I understand what we can and can't talk about. And they were just talking about fracking.
Similarly, the Nurrdalinji Native Title Aboriginal Corporation contended that the NLC and Origin Energy have not properly communicated or consulted with the Native Title holders from 11 determinations of Native Title across the Beetaloo:
Origin Energy and NLC are not consulting with all people whose interests may be affected by those risks. Our people have raised these and other concerns with the NLC and Origin Energy on numerous occasions over recent years. Origin Energy hides behind the NLC. The NLC first ignored our concerns, and more recently has behaved disrespectfully and aggressively towards us. Many of us feel trapped by the…representation and agency arrangements, and we need urgent help to change those arrangements so that we are given respect as native title holders, and so that we can start to make decisions about our country and our future with proper advice from faithful representatives and agents.
Mr Wilson alleged that the NLC has been selectively and improperly consulting with Traditional Owners, which is causing great divisions within communities:
…the NLC are hand-picking a few traditional owners who they know they can manipulate to give them what they want so they can have the authorisation to give to the mining companies and say: 'Here; we've got authorisation. Go ahead and do it. Go do what you have to do. We've looked after the other side, the traditional owners.' We all know now that that's been happening with the NLC. They have been hand-picking people—elders—and making them sign off without proper consultation with the whole family, with the whole clan. You've got families. You've got one family here and one family there. There have been arguments because one family or somebody in one family has signed over these agreements without the knowledge of the whole family, of the whole clan, of the whole traditional owners group, and that is very upsetting. That is where all the arguments are coming in, and it's destroying Aboriginal people.
Ms Dank submitted that, in her case, the NLC has actively attempted to prevent her family's voice from being heard. She attributed their 'frustrating' relationship to her family's reputation as 'trouble makers':
My family have been, historically, and it probably all stems back to 1999, when we were given Balbarini back. A few months after we were handed back Balbarini, the NLC came to us with a pastoral company. The pastoral company wanted to lease our place, and it was a 99-year lease, and we refused. We've refused certain things like that ever since. So we've become known as the 'no' people, the troublemakers.
Dr Paul described their current situation as dire, with the Australian and NT Governments unwilling to intervene to address the situation:
…it seems like no minister at the federal or Territory level is willing to take our concerns seriously and that all we're going to get is stock letters from elected officials. No-one is going to hold the NLC responsible, and therefore no-one is going to hold Empire [Energy] responsible for the actions they follow.
All the people and bodies who are supposed to represent us have refused to execute their responsibilities and have thus failed us. This is why we appear before you today—to ask that all members of this inquiry take the responsibilities seriously and act with a clear conscience. We want you to consider this: if this were your country and your home for the last 60,000 years, what would you do to protect it? Our social status, political affiliations, access to legal counsel and economic status should not affect our right to justice.
Mr Guyula argued that there is a role for representative bodies—like the NLC—in consultations however, he emphasised that the legitimacy of these bodies depends upon their acceptance by Traditional Owners: 'we can use organisations like the Northern Land Council or other Indigenous organisations as long as the people out there are satisfied'.
Empire Energy response
Empire Energy submitted that respectful engagement with Traditional Owners is core to its business strategy, as has been demonstrated over the past decade. It argued that 'the company has at all times met or exceeded regulatory requirements in relation to obtaining the full and informed consent of traditional owners'.
Empire Energy noted that, since 2011, it has attended approximately 30 meetings that have been held on Country in relation to its projects (EP187). Managing Director Mr Alex Underwood stated:
From the outset in those discussions we have explained to traditional owners what is involved in the unconventional petroleum exploration and development process, including drilling, fracture stimulation and the protection and use of water resources. We have always worked proactively with traditional owners to ensure that sacred sites are protected.
Representatives discussed with the committee the process of obtaining consent under the Land Rights Act. Mr Underwood noted that the NLC acted on behalf of Traditional Owners in the Beetaloo and although Empire Energy attended meetings to present work programs:
…we are specifically excluded from most of the proceedings of those meetings so that the issues can be discussed without our undue influence on the process.
Mr Underwood noted that, at the end of those meetings, Empire Energy was 'notified that consent is provided, but there is no identification of the consenting Traditional Owners'. According to its submission, Empire Energy applied for EP187 on 12 April 2010 and signed a comprehensive Exploration Deed with the NLC on 5 February 2014, after which the EP was granted.
The committee notes that the NT's key environmental legislation—the Environment Protection Act 2019 (NT)—imposes duties upon activity proponents in respect of proposals that may affect Aboriginal communities. The committee also notes that, under the Land Rights Act, land councils act on behalf of Traditional Owners.
The committee notes particularly that the NT Government has not given final environmental approval to Empire Energy.
Northern Land Council response
NLC representatives referred to the council's current Mining Policy, which aims to guide its officers towards ensuring that:
decisions made at consultations are upheld by processes consistent with the principle of free, prior and informed consent; and
the NLC complies with all relevant laws in the discharge of its functions and duties.
NLC CEO Mr Joe Martin-Jard stated that the NLC's allegiance is to its approximately 51 000 constituents, and 'the Northern Land Council strives to give the highest standards of advice and assistance to our constituents. We reject any suggestion to the contrary'.
In answer to a question on notice, the NLC described its consultation activities for EP187 and EP184, from 2011 to 2013 inclusive. The NLC noted ongoing work program meetings and site inspections for EP187, and activity proposals for EP184 not proceeding since 2016. The NLC also noted that, with the assistance of cultural advisers and translators, it provided its constituents with information that was 'detailed, factual and unbiased' and 'sought to accurately describe the known risks associated with fracking and other petroleum exploration activities, and the regulations and methods available for mitigating those risks'.
Mr Greg MacDonald, Manager (Minerals and Energy) with the NLC, told the committee that there had been extensive consultations undertaken with respect to Empire Energy's petroleum exploration activities:
…the NLC has consulted fully with all of the traditional owner groups and affected Aboriginal groups and people in that region, including members of Ms Dank's family. And I believe that Ms Dank herself even briefly attended one of those consultation meetings.
Another NLC representative, Mr Daniel Wells, explained that group decision‑making depends upon the particular law and custom of the group concerned: 'within the organisation there are very strong levels of corporate knowledge about how each group makes decisions under their Aboriginal law'.
In relation to the Beetaloo, Mr Wells stated:
…it is the case that the estate groups, the clans, make decisions traditionally, and it's the senior knowledge holders who ultimately, under their law, have the power to make decisions about country. It's not a matter of numbers. It's not a matter of votes. It's not just a matter of consensus.
In relation to the Nurrdalinji Aboriginal Native Title Corporation, Mr Wells questioned its authority to speak for Native Title holders in the Beetaloo, saying: 'it was quite clear to us that many groups and many senior native title holders either didn't know anything about [the formation of this body] or were opposed to this particular action'.
The committee notes information received from Ms Dank, which argues that attendance at meetings does not equate to consultation or evidence informed consent (particularly where English is a second, third or even fourth language, and since translators are rarely provided).
The committee also notes Ms Dank's rejection of NLC's ability to determine who has the right to speak for her family:
The NLC has the audacity to suggest that they have a better understanding of my culture than me… They…say that they are "not aware of any legitimate basis on which it could accept Ms Dank’s claim to be Ngnimirringki for Karranjini Rrumburriya country. Under their traditional laws and customs, the Karranjini Rrumburriya group do not regard Ms Dank as either Ngnimirringki or Djunggayi". Who are they to question my role within my family and clan and my lived experience? I was born Gudanji. I was born into my role. My mother was born into her role. This is Women's Country. We do not need to be told by a group of white men sitting around a table about our history, our kinship system or our way of ascribing roles within our family. Their attempt to deny recognition of my role within my family is an attempt to stifle my voice and further deny my family's right to participate in the consultation process. By questioning me, they are questioning my grandmothers and this shows great disrespect for them… I speak for my family as I am expected to and because my family have asked me to.
The committee notes that, in answer to a question on notice, the NLC advised that it compiles and maintains detailed records of the membership of the majority of Aboriginal groups with interests in the NLC area. The NLC stated that these records commence with the making of land or native title claims and is then constantly maintained by its anthropologists with the assistance of NLC constituents.
Benefits not going to communities
First Nations Peoples expressed the view that there are better ways to spend $50 million than support large, well-resourced corporations to accelerate unconventional gas exploration through the BCD Program. The committee heard unanimous and unequivocal agreement that the grant money should be spent within impoverished communities on Country where it is greatly needed.
Mr Hoosan, representing the Gudanji people and the four language groups of Borroloola, stated, for example:
The government are putting money towards all these big companies. The $50 million we are hearing about should be spent here locally, around the local community in the Gulf region—and not only here but around other parts of the Northern Territory as well.
Mr Asman Rory, a Gudanji and Garawa man representing the four clan groups throughout the Beetaloo and McArthur Basin, highlighted the ways in which money could be spent on Country:
The federal and the Northern Territory governments have the audacity to give away $50 million to the fracking companies when we have a crisis in the lives that are involved in this region. This $50 million could especially benefit housing, families, health, education, culture, language, stories, our way of life, our history, our water, our song lines, our practices.
Mr Fitzpatrick gave similar evidence:
There are plenty of other ways to use that $50 million. Up here in the Territory we are in poverty. We have got a mine next to our country—McArthur River Mine—making billions of dollars. Look at Borroloola. Borroloola doesn't look like a billion-dollar place. It looks like it has been forgotten for 30 years, and that's exactly what has happened. There are no footpaths anywhere around Borroloola. The kids are still walking on the road… We need to be really thinking for the future for all of us.
Mr Rory added that the $50 million should be provided to First Nations People, to help 'close the gap' between Non-First Nations and First Nations people:
We need that money. If you're willing to put 50 million dollars into fracking companies to dig up oil and gas or, you know, destroy land and water right across the Territory, give that to the rightful people… That can be a more effective way to manage and practise what the people need and do every day in their lives as Aboriginal and Torres Strait Islander people for this country. But the one thing that we haven't learnt is from each other. That relationship is about 250 million years of gap. And we're still trying to close the gap. Northern Territory government and the Federal government you're not closing any gap by giving fracking companies 50 million dollars or any sort of money towards any quick buck for your needs. Aboriginal people are in need of housing infrastructure and just to live a daily life in our communities, on our homeland with the natural environment.
The Australian Youth Climate Coalition agreed that the BCD Program grant funding should be repurposed to support First Nations communities and to be more environmentally focussed:
It is outrageous that the government plans to spend public money on projects that will worsen the climate crisis and have negative consequences for the health and wellbeing of proximate communities—many of which are First Nations, and already experience significant social disadvantage across a range of areas. Public money needs to be invested into helping communities and ensuring healthy, thriving environments. There are many other ways the funding proposed for the gas fired recovery plan could be better spent supporting people and the planet.
The committee notes that the NLC gave evidence to the inquiry that they were not consulted on the Australian Government's BCD Program prior to its announcement.
Concerns over land and water contamination
First Nations people raised concerns about the potential environmental impacts of unconventional gas exploration activities on Country. For example, Ms Veronica Lynch from the Black Tank Bore Homeland stated that 'we don't want fracking on our country because…it'll destroy our waterways, our surface areas and all our animal life and dreaming story, sacred sites area'.
Ms Wilson explained her deeply held concern about the 'poison' involved in the fracking process, which she fears will move well beyond the boundaries of the Beetaloo:
When it rains here, it floods. When it floods up there, where they're destroying that main Beetaloo Basin, all that poison is going to come right down to us here [in Elliott and Daly Waters].
Ms Mills remained sceptical about assurances given to Traditional Owners regarding the impact of unconventional gas exploration on Country:
…before these fellas came here, they were over in the USA. They were everywhere… Everywhere [the fracking companies have] been they've left a trail of filth and destruction and poison and environmental horrors… We're being told lies by the gas companies, we've been told there'll be just a couple of wells, or there'll be just a little tiny hole, which is, you know, what could that possibly do? These are all lies. They're all deceptions. It's all designed to get them over the line to convince our people to say yes.
The Australian Youth Climate Coalition submitted that oil and gas exploration and production in the Beetaloo will also exacerbate climate change, which will disproportionally affect First Nations people:
It is often the most marginalised in our societies who are hit first and worst by climate impacts and carry the burden of polluting industries. The climate crisis is unjust; those that have done the least to cause the problem feel the effects first and worst. This is particularly true for Aboriginal and Torres Strait Islander people, who are already experiencing the impacts of climate change and fossil fuel extraction on community, culture and country.
Ms Amelia Telford representing the Australian Youth Climate Coalition elaborated:
…the issue of heat up here is a real concern, in terms of what scientists have predicted for future heatwaves and the number of days over 30 degrees. When you consider the amount of resources and the lack of resources that communities have, the impacts of climate change could make communities up here unliveable, which could force people off country, and that is just from climate change, let alone issues to do with the actual process of fracking, and threats to water there as well. In terms of climate, it is a very big concern, and it's absolutely connected to all of the other issues that we've spoken to as well.
Empire Energy acknowledged community concerns about environmental impacts that might be experienced by unconventional gas exploration activities in the Beetaloo, conceding that 'it is incumbent on us to demonstrate that we are protecting land, environment and culture'.
To illustrate its commitment, Empire Energy outlined the types of consultation, negotiation, anthropological and environmental surveys that the company regularly undertakes, adding:
…whenever we access new areas and turn soil for the first time, traditional owner cultural heritage monitors, appointed independently of the company, are present to ensure that we do not disturb sacred sites which had not previously been identified.
The committee notes however that, while Empire Energy's Beetaloo project is underway, in some respects the project is not so advanced. For instance, the company has not yet completed its environmental, social and governance policy, nor was it able or willing to provide the committee with a copy of its sustainability road map.
The committee acknowledges the deep and enduring connection that First Nations people have with their Country and that any unwanted interference can have significant and ongoing cultural and spiritual consequences. The committee recognises that petroleum activities in the Beetaloo have the potential to create such interference.
The committee heard that, over a considerable period of time, some First Nations people have clearly expressed their opposition to fracking in the Beetaloo. However, the oil and gas industry and governments have not heard, or have chosen to prioritise, petroleum exploration and production.
The committee notes that activity proponents often conduct their consultation processes through representative bodies—such as prescribed body corporates or land councils—and acknowledges that these representative bodies do not necessarily represent or consult all Traditional Owners.
The committee also heard that, while the NLC has consulted in relation to proposals for shale gas exploration, a significant First Nations cohort does not consider that it has been properly consulted.
For example, the committee is deeply concerned that Traditional Owners—such as Ms Dank and her clan and the Nurrdalinji Aboriginal Native Title Corporation—whose Country is integral to the Strategic Plan and the subject of the Instrument, reject that consent has been provided and those in a position to investigate the lack of consent have declined to do.
Based on the totality of information received, the committee is not convinced that all Traditional Owners and Native Title holders in the Beetaloo have provided Free, Prior and Informed Consent to petroleum activities on Country. The committee considers that there is a need for further action to ensure that consultation is conducted inclusively and consent is only given in a free and informed manner. It is incumbent on government to institute the regulatory requirements to achieve this outcome.
A review of the regulatory processes under relevant Commonwealth and territory laws should be conducted, using a collaborative approach with all stakeholders and with specific consideration of the need to conduct properly resourced on Country consultations, including the provision of translators, in order to comply with and respect First Nations laws.
This is consistent with the Pepper Inquiry which concluded that an 'onshore shale gas industry in the NT can be appropriately managed by [among other things] reforming the current regulatory framework governing onshore shale gas development in the NT to strengthen transparency and accountability of all decision-making'.
The committee recommends, consistent with the Pepper Inquiry, that the Australian and Northern Territory Governments, in collaboration with all relevant stakeholders and First Nations people, review the consultation processes used to obtain Free, Prior and Informed Consent from Traditional Owners and Native Title holders in relation to activity proposals on Country, with specific consideration of the need to conduct on Country meetings and to provide translators.
In relation to the $50 million taxpayer funds committed under the BCD Program, the committee heard and agrees that there are better ways to spend this money than developing a shale gas industry in the Beetaloo. For too long the needs of First Nations communities have been given a lower consideration than they deserve. It is unconscionable for those communities to be subsisting in conditions that would be unacceptable in Non-First Nations communities.
However, while the committee considers that $50 million could productively be spent on Country, as suggested by many submitters and witnesses, circumstances have moved far beyond such a simple option.
Instead, during the remainder of this inquiry the committee will examine options to provide additional resources toward infrastructure and other projects for the betterment and advancement of First Nations people.