The underlying premise of a number of recommendations by the committee is that fracking activities will and should go ahead. This, in itself, is a wrong premise as it violates the right of First Nations people to Free, Prior and Informed Consent (FPIC), our right to maintain and protect our cultural heritage, our right to participate in decision-making processes through self‑determined representation, and our right to our Country and resources, as per the United Nations Declaration on the Rights of Indigenous Peoples.
These and other underlying structural injustices are best addressed through a much-overdue Treaty between the Commonwealth and First Nations peoples in this country.
That a national Treaty with the First Nations peoples of this country be pursued immediately, based on a First Nations self-determined framework and premise.
Fracking companies do not have consent of Traditional Owners to frack the Beetaloo, and all fracking activity must halt immediately until and unless this is obtained.
Recommendation 10 of the majority report addresses the concern over consultation with Native Title holders and Traditional Owners in the Beetaloo. While the emphasis on FPIC is welcome, there are significant issues with the operation and functions of the Northern Land Council (NLC) in the way that it consults with and represents Traditional Owners. Despite stating that it adheres to the principles of FPIC in its consultations, widespread opposition from communities who feel they would not benefit from fracking activities is evidence that these processes are inadequate and must be improved. In some cases, communities were not even consulted by the NLC, despite the NLC stating it represents Traditional Owners’ opinions.
These concerns mirror those provided in evidence to the inquiry into the destruction of the Juukan Gorge, where, the Nurrdalinji Native Title Aboriginal Corporation stated:
Many native title holders of the Beetaloo Sub-basin region are deeply concerned that while we have achieved formal recognition of our native title, we have no governance structure to facilitate planning our future and making our own decisions, and virtually no control or say over what happens on our country. That is due in large part to current representation and agency arrangements involving the Northern Land Council (NLC) (the native title representative body for the Top End), and the [Top End Default Prescribed Body Corporate]… We are in urgent need of proper representation and agency arrangements, not the façade that is currently in place.
Mr Johnny Wilson, Chair of the Nurrdalinji Native Title Aboriginal Corporation, further stated about the NLC:
...for so long there is no connection and no cooperation between the NLC and traditional owners with regard to mining or with regard to anything that happens on country. If there is communication, it is to the wrong people, the ones they can manipulate. The NLC also don't want to lose that power or to let somebody else take over what they think is rightfully theirs.
The final report into the destruction of Indigenous heritage sites at Juukan Gorge noted:
…grassroots Elders and Traditional Owners in the Beetaloo Basin expressed concerns about the decisions of the Prescribed Body Corporate and in this instance attempted to establish an alternate PBC. They also questioned the adequacy of the consultation processes conducted by the Northern Land Council. This reiterates the urgent need for clear guidelines around best practice consultation processes and the importance of Free, Prior and Informed Consent, including the right to veto to ensure that Traditional Owners’ voices are heard and they have the authority to protect Country and cultural heritage.
Ms Larissa Baldwin, former Director of First Nations Justice at GetUp, also pointed out that proponents have continuously refused to meet with Traditional Owners despite repeated requests to address their concerns. There must be greater regulation to improve stakeholder engagement prior to any project approval, and governments and government agencies, including the NLC, who provide approvals to projects that have not conducted stakeholder engagement, must be held to account for their complicity in failing to consult with Traditional Owners and obtain their consent.
All fracking activity in the Beetaloo must halt until and unless the Free, Prior and Informed Consent of Traditional Owners in the region, whose sacred lands and waters will be devastated by fracking, is obtained.
Proponents must consult with Traditional Owner communities (not limited to Native Title holders and corporations) themselves and prove that they have obtained Free, Prior and Informed Consent, rather than simply operating through the Northern Land Council. Greater transparency and accountability are required to address the ongoing issues of manufactured consent that have allowed project approvals despite widespread opposition from Traditional Owners.
Implementation of the Pepper Inquiry
Recommendation 4 of the majority report calls on the Northern Territory Government to expedite full implementation of all outstanding recommendations from the Scientific Inquiry into Hydraulic Fracturing in the Northern Territory (the Pepper Inquiry).
In the recent Safeguard Mechanism reform debate, the federal government supported a second reading amendment that emphasised its commitment to ensuring adherence to all recommendations of the Pepper Inquiry. Moved by Senator Thorpe, it read:
The Senate calls on the Government to, in line with its commitment to implementing Recommendation 9.8 of the final report of the Pepper Scientific Inquiry into Hydraulic Fracturing in the Northern Territory, ensure the gas industry in the Northern Territory’s Beetaloo Basin is required to offset all Scope 2 and 3 emissions by referring this matter to the Energy and Climate Change Ministerial Council and working with the Northern Territory Government to achieve this.
Concerns from First Nations communities over the fracking plans did not just include environmental and climate change issues and the lack of benefits to our communities, but also included concerns over the impacts to our cultural heritage. During the inquiry into the destruction of the Juukan Gorge, it became clear that cultural heritage protection laws and practices are inadequate to address these risks and that heritage legislation at all levels of government require a whole new framework to become effective.
That the federal government expedite the implementation of all eight recommendations of ‘A Way Forward’, the final report into the destruction of Indigenous heritage sites at Juukan Gorge.
That the Northern Territory Government expedite the amendment of the Aboriginal Sacred Sites Act 1989 (NT) to protect all sub-surface features of a sacred site as per Pepper Inquiry Recommendation 11.3.
Senator Lidia Thorpe