In its Interim Report, the committee examined a range of First Nations people’s views on fracking in the Beetaloo. Subsequently, the committee received further information from First Nations representatives as well as pastoralists with significant investments and leaseholds in the region.
This chapter discusses the following three topics:
concerns expressed in relation to gas activities in the Beetaloo;
consultations with First Nations people and pastoralists; and
the protection and preservation of cultural heritage.
Concerns expressed in relation to gas activities in the Beetaloo
In Chapter 4 of the Interim Report, First Nations people voiced concerns about the impacts of fracking on Country. Pastoralists also provided their perspective on the proposed development of a gas industry in the Beetaloo.
Destruction of culture and Country
Traditional Owners and Native Title holders in the Territory travelled from remote and regional communities to ensure that the committee heard and understood their views about what is occurring, and what might happen, on Country.
Ms Nancy McDinny, a prominent Indigenous artist and a Traditional Owner from Borroloola, stated:
[W]e don't want no fracking, no mining in our land. We want to protect our country and our children. Our future. Water is very important. I'm not going to live in a big city like this [Darwin]. This is not my feeling, here.
Similarly, Mr Johnny Wilson of the Nurrdalinji Native Title Aboriginal Corporation (Nurrdalinji Corporation) stated that, even if fracking could be undertaken in a safe manner:
We do not want fracking on our country, full stop. We have seen photos of places where fracking has done so much damage to country. Our cultural heritage and our sacred sites are so important to us—our songlines, our dreaming and our water. Our water is our life; when that is contaminated, we are nothing. Where is our future? Where is every generation's future for the Beetaloo basin?
Several First Nations witnesses gave evidence of the changes they have observed on Country arising from mining activities (although not necessarily connected with fracking operations) and broader climatic changes. For example, Ms Joni Wilson, a Traditional Owner from Borroloola, referred to the McArthur River Mine site in the Beetaloo:
I've been seeing change at the McArthur mine, where my parents used to take me to collect berries. I can't take my kids there now to collect those same berries. It's damaged; it's gone… [W]e're seeing changes. The fish are going, the birds are disappearing—everything is changing.
Mr Asman Rory, also from Borroloola, spoke of his concerns about mining operations throughout the Territory:
I drive on our Carpentaria Highway and I see a flame coming out. This was the first time in my life, and I've grown up on this country. I looked and I said: 'What's this here? It's a scary thing! There's a flame burning in the bush.' That was from the Carpentaria Highway, after all this fracking and mining.
Mr Gadrian Hoosan, a Traditional Owner from Borroloola, described changes to his Country:
We're watching the land just going away. We're seeing that. We're the ones experiencing that. We can see that. Our groundwater is not even filling up anymore through the big wet season that we used to have. We used to get running water; when we used to have a big, massive wet in the gulf, we used to get all this groundwater coming up from the ground—spring water. It used to overflow from underground, but you don't see that anymore. The ground is dry.
The committee acknowledges the importance of First Nations people’s connection to Country, including in the Beetaloo, and agrees that impacts from fracking should be avoided or mitigated to the greatest extent possible. This includes upholding the principle of free, prior and informed consent (FPIC).
Various witnesses had different views on how gas activities in the Beetaloo might affect the land holdings and livelihoods of pastoralists. Mr Will Evans of the NT Cattlemen’s Association said, for example:
We have some members in the Beetaloo region who are quite openly opposed to it, and other members who are not. There's a distinction that needs to be made between members who are currently going through a process of negotiating land access agreements or have established gas interests on their properties, and those who do not… [O]f the members that I'm aware of who have gas on their property, there is probably an even split between those who are supportive and not supportive.
Mr Evans added that the legal process must protect pastoralists and ‘insofar as possible, or certainly to the fullest extent of the law [that their land] is protected’.
Mr Rohan Sullivan, part owner of Birdum Creek Station in the Beetaloo, described his positive experiences with the gas industry, including in negotiations with Empire Energy Group Ltd (Empire Energy) for a land access and compensation agreement:
I believe there's recognition of the rights of the different parties to operate on the land and the need to coexist and cooperate, provided that certain conditions are met. The types of issues we're negotiating about include: assurances about water usage, monitoring, trigger points and 'make good' provisions; usage and maintenance of existing station infrastructure, such as roads; environmental considerations, such as weeds and erosion; prevention and management of fires; protocols to minimise disturbance of cattle and station activities, such as mustering; and retaining infrastructure that is no longer required for gas exploration, such as gravelled access roads, cleared lines for firebreaks, water bores and pipelines, for the benefit of the pastoralist.
However, Mr Sullivan noted that his support was subject to safeguards being in place for fracking operations, as well as benefits being provided to local communities:
So, what do we want to see from the gas industry in our region? We want to see no adverse impacts on our operations or the resources we rely on; benefits to the local community in the form of quality long-term infrastructure, employment and business opportunities; diversification and growth of the Northern Territory economy…and a contribution to the future security and prosperity of the country.
Conversely, Mr Pierre Langenhoven, Director of Rallen Australia Pty Ltd (Rallen), which runs a ‘four-stage pastoral station’ in the Beetaloo, stated:
We do not think gas exploration in the Beetaloo Basin should be pursued at all, let alone receive public subsidy. There is an almost certain likelihood of significant and permanent damage to existing and future land users for little, if any, public benefit… The track record of the interest holders [petroleum companies] shows that there is no chance that they will manage those risks responsibly, and there is no effective regulation to ensure that they do.
Mr Daniel Tapp, another pastoralist in the Beetaloo, agreed that the regulatory regime does not ensure that development risks are properly managed to mitigate the impacts on leaseholders:
Communities and stakeholders are getting a bit concerned about peak industries actually scrutinising this development process, because the failure of implementation of [the Independent Scientific Inquiry into Hydraulic Fracturing in the Territory (the Pepper Inquiry)] recommendations—it is not happening—and basically throwing all the risks and liabilities back into the court of the landholder or the stakeholder. And here we are, with gas companies knocking on the door wanting us to sign access agreements where we haven't got the information, water studies, environmental impact studies, to make a decision.
Mr Paul Burke, Chief Executive Officer of the NT Farmers Association, advised that his organisation would support the development of the gas industry in the Territory but on the ‘very big proviso’ that all recommendations of the Pepper Inquiry are fully implemented.
National Water Initiative
In 2004, the NT Government recognised and agreed the overarching goal of the National Water Initiative (NWI), that is:
…the continuing national imperative to increase the productivity and efficiency of Australia’s water use, the need to service rural and urban communities, and to ensure the health of river and groundwater systems by establishing clear pathways to return all systems to environmentally sustainable levels of extraction.
When achievement of this goal was assessed by the Productivity Commission (PC) in 2020, the PC found that, while the states and territories had made progress, the overarching goal should be modernised ‘through reference to adaptation to climate change and recognition of the importance of water in the lives of Aboriginal and Torres Strait Islander people’.
The Australian Government has not yet responded to the PC’s 2020 inquiry report, however, the Department of Climate Change, Energy, the Environment and Water (DCCEEW) advised:
The Australian Government has committed to work with states and territories to renew the NWI. Renewing the NWI offers the opportunity to better reflect climate change, provide for increased First Nations influence in water resource management, ensure access to safe and secure drinking water and take a strategic approach to groundwater management.
The committee accepts that there is a diversity of opinion as to whether gas activities should occur in the Beetaloo. For some people, their support is contingent upon safeguards to protect property rights and interests or the protection of culture and Country. For others, the direct and indirect benefits are an important consideration, although these benefits are far from settled. One matter upon which most stakeholders agree is that the groundwater in the Beetaloo must not be adversely impacted by gas exploration and production.
The committee agrees with the PC that the nearly 20-year old NWI is outdated and notes that the initiative cannot possibly have anticipated large-scale water extractive industries in the Beetaloo. In the committee’s view, renewal of the NWI must take into consideration the impact of such industries in Northern and Central Australia and other arid areas of the continent. To inform this renewal, the committee considers that it would be beneficial to examine how the NT Government has sought to achieve the overarching goal of the current NWI.
The committee recommends that the Australian Government, as part of its efforts to renew the National Water Initiative, obtain from the Northern Territory Government a brief on actions undertaken by the Territory to give effect to its existing commitments under the Intergovernmental Agreement on the National Water Initiative.
Consultations with First Nations people and pastoralists
In its Interim Report, the committee noted that there are Commonwealth and Territory laws that protect First Nations people, their land and their culture. In particular, the Aboriginal Land Rights (Northern Territory) Act 1976 (Aboriginal Land Rights Act) gives Traditional Owners the right to be consulted about, and to consent, or refuse to consent, to the grant of an Exploration Permit (EP) on Aboriginal land. These rights do not exist for Native Title holders under the Native Title Act 1993 (Native Title Act).
Chapter 4 of the Interim Report examined the concerns raised by First Nations people about consultations conducted by gas companies operating, or seeking to operate, in the Beetaloo, as well as the consultations conducted by the Northern Land Council (NLC).
The NLC is the ‘Land Council’ (as defined) charged with consulting with Traditional Owners or affected First Nations communities or groups about applications for consent to exploration licences on ‘Aboriginal land’ (as defined), under the Aboriginal Land Rights Act.
From time to time, members of the NLC Executive also hold positions in the Top End (Default PBC/CLA) Aboriginal Corporation (Top End PBC). The Top End PBC is the ‘prescribed body corporate’ (as defined) under the Native Title Act, and is responsible for consulting and obtaining consent from Traditional Owners in relation to decisions that surrender or affect Native Title rights and interests.
Issues of consent
At the public hearing in Darwin on 22 March 2022, witnesses gave further evidence about First Nations people’s consent to gas exploration on Country. Mr Andrew McConville, former Chief Executive of the Australian Petroleum Production and Exploration Association (APPEA), stated:
…no exploration and no production of oil and gas can commence on any traditional owners' land or any pastoralists' land without their consent.
As noted earlier, Native Title holders’ consent to exploration activities must be negotiated with gas companies or failing that, enter into arbitrated agreements for land access. The Environmental Defenders Office (EDO) contended that this effective lack of veto creates an inherent power imbalance:
Meaningful free, prior and informed consent must be premised on the right to say no to resource development on their land and uphold Native Title recognitions such that the power in any negotiations with First Nations is not sitting with the resource company and government only.
Similarly, pastoralists cannot withhold consent to gas activities on their properties: the law requires them to grant access to their land and water.
Consultations with shale gas proponents
Mr Tim O’Grady, the General Manager of Government Engagement at Origin Energy Ltd (Origin), stated that ‘all [its] activities in the Beetaloo have consent from the native title holders, as well as any future activities’.
In 2021, Origin published a report about its past and ongoing engagement with Native Title holders and how its activities are guided by the principles of FPIC. Mr Simon Nish, Lead Negotiator of Indigenous Land Use Agreements for Origin, clarified the company’s interpretation of these principles:
…there's no universal definition, so you have to land on something and agree to something operational… [O]ne important thing about free, prior and informed consent is that it doesn't amount to unanimity, so there may be dissenting voices. But, provided that the traditional decision-making process has been applied, it's that process that informs consent. There may well be dissenting voices. That doesn't necessarily mean that there isn't consent under the rules of free, prior and informed consent.
Ms Larissa Baldwin from GetUp suggested that it is difficult for Traditional Owners and Native Title holders to initiate consultations when they consider it necessary:
We've been to many different AGMs—I think it's three or four consecutive Origin AGMs—where we've asked Origin to come out and meet traditional owners. Each time the chair has promised to do it, but there has been no follow-through. Uncle Ray came down to Sydney one time—and Aunty May was part of that as well—and presented a petition from 280 native title holders in the Beetaloo region under Origin's licence who said, 'Please come out and meet with us.' The chair said that he would. He met them afterwards and said that they would, but there has been no correspondence and no response to the emails sent by traditional owners to the executive at Origin.
While Ms Baldwin referred specifically to Origin, another witness—Mr Langenhoven—expressed identical concerns more broadly:
We've got three interest holders wanting to come on one property. That's a huge inconvenience. We've got Santos [Ltd] (Santos), Tamboran…and Origin. We took Santos to court in January  for no stakeholder engagement. A month later Tamboran put in an EMP [Environment Management Plan] with no stakeholder engagement; we asked them to withdraw that because there was no stakeholder engagement, and they agreed to withdraw it. That's what you're dealing with. Even though you go through the whole process to try and get them to do stakeholder engagement, a month later they will do exactly the same thing.
Santos representative, Ms Tracey Winters, Acting Executive Vice President of Environment, Sustainability and Governance, advised that Santos operates within a ‘regulatory framework that protects and recognises the interests of a wide range of stakeholders, with whom we aim to consult openly and transparently’.
In relation to the Beetaloo, Ms Winters indicated that consent had been obtained appropriately from the relevant Traditional Owners:
…Santos respects the decisions of the Federal Court in relation to who the traditional owners are for various parts of Australia. While we consult with all traditional owner groups who want to do so, we do respect the decision of the court. And we do have agreements in place with 21 traditional owner groups across Australia, including for our operations in the Beetaloo.
Consultation by the NLC
In the 46th Parliament, Native Title holders and Traditional Owners questioned the extent, timeliness and quality of consultations conducted by the NLC. The Nurrdalinji Corporation submitted, for example, that ‘the NLC continues to facilitate fracking in our country without proper consultation, with no genuine mandate and against the wishes of the majority’.
Mr Hoosan argued that the NLC did not understand his people and Country, and as such could not appropriately represent either:
…Dreamtime story travels… I hold a songline for my mother's father. I'm junggayi for my mother-father gudjagara. And I sing that gudjagara too back home. It's not the Northern Land Council, not the mining company and not the government. We do that… I'm talking about the ones who don't understand. Do you know what I mean? They don't understand us. They will never understand us. They don't feel the pain that we feel for the land. That's what they don't feel.
Mr Bradley Farrar, a Traditional Owner from Hodgson Downs, similarly questioned the NLC’s processes in conducting consultation and obtaining consent:
I don't like the NLC either, because they tell lies every time. There is NLC on your own land that is trying to get you back and destroy what is ours, you know. What is left on the land is ours. Our Dreamtime, our songline—it doesn't stop at one place; it travels. It travels from place to place. It travels far and wide. That's why we're all connected. The NLC don't come to the right people. They go to the wrong people.
Aunty Naomi Wilfred, an Alawa Traditional Owner from Minyerri, expressed her view that local decision-making is critical, rather than the decision-making that occurs through the NLC:
What I am about is that local decision-making. It should be on the ground. It should be coming through the right channel, the right TO [Traditional Owner], the right junggayi, right minggirringi. It doesn't matter where we sit; through our land connection, we are connected. Through our songline connection, we are connected… Local decision-making should come through the TO. Here we've got Bradley [Farrar]; he's like TO for Minyerri. I'm like junggayi and darlnyin. There are three that look after that land. When the TO make decisions, it's got to come through us, whether we're going to agree or whether we're going to knock that back. That's why we're worrying about NLC. They should have come and consulted people. But they went out and did their own local decision-making.
Mr Fitzpatrick suggested that there are ways in which Traditional Owners can work effectively with the NLC to ensure appropriate representation in negotiations:
If we can fix that top process—for example, if we have a proper vote where we can put our own members in there to make decisions and to go back and talk to the right people or the families. There is a way where we can still work with the NLC, if we do it properly and get it back to the way it was originally—the way it was supposed to be.
The NLC has previously responded to this evidence and representatives reaffirmed the Land Council’s commitment to fulfilling its statutory obligations under relevant legislation:
We are confident that we perform our statutory functions and duties in accordance with the requirements under the legislation of both the Native Title Act and the Aboriginal Land Rights Act.
The NLC explained its process of consultation, including the initial step of:
…identifying the relevant traditional Aboriginal owners or native title holders for that area. This process involves the anthropological team undertaking a review of relevant Federal Court native title determinations, reports of the Aboriginal Land Commissioner and other NLC records.
This is a time-consuming process because the area of interest for consultation purposes may not correspond to the boundaries of an Aboriginal Land Trust or native title determination. Further, while the native title determinations identify the native title holders for the entire determination area, they do not identify the native title holders for specific parts of a determination area.
In relation to FPIC, Mr Greg McDonald, the NLC’s Branch Manager for Resources and Energy, emphatically stated:
We want traditional owners to make decisions based on good information following the principle of free, prior and informed consent… We make it clear that we’re here to give traditional owners information and, on the basis of that information, decisions can be made by traditional owners without coercion or influence. They have the right to withhold consent; they have the right to refuse consent.
Top End (Default PBC/CLA) Aboriginal Corporation
In the 46th Parliament, Traditional Owners and Native Title holders also raised concerns about the representation provided by the Top End PBC. The Nurrdalinji Corporation, for example, expressed strong opposition to representation under the Top End PBC framework:
The Top End (Default) Prescribed Body Corporate (TED PBC) is not able to adequately represent anyone. There is no effective PBC (or other regional governance forum) in our region or anywhere in the Top End. We have no say in or control over the TED PBC, yet the NLC still claims it speaks on behalf of our people and country.
The TED PBC is just the NLC Executive Council with another name… Native title holders cannot requisition a meeting of the TED PBC or exercise any of the other protections that PBC members elsewhere in Australia have under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. An arrangement like this is not tolerated anywhere else in Australia, and it is doubtful it is even lawful.
Mr Joe Martin-Jard, then Chief Executive Officer of the NLC, stated that the NLC would respect and support any Federal Court of Australia determination of an alternative ‘prescribed body corporate’.
The Nurrdalinji Corporation contended, however, that its efforts to be appointed as the ‘prescribed body corporate’ for Native Title holders in the Beetaloo had been obstructed by the NLC:
For months, Beetaloo Sub-basin native title holders requested the NLC to meet and discuss our concerns. The NLC chose not to respond at all. When we then began organising our own meeting, we asked the NLC for help, in order to make sure it was as fully notified as possible, and we invited them to come and speak to the meeting. They chose not to respond to these requests and invitations as well. So we went ahead with our meeting, and at the meeting we believed we properly decided, to set up Nurrdalinji and to have it replace the NLC/TED PBC arrangement.
The NLC’s initial response was a rude and disrespectful letter. Then when we started the proceedings, we were met with claims from the NLC’s lawyers that the meeting had been insufficiently notified, that it was not well attended enough and that we had not used a correct traditional decision-making process (without any indication of how they thought we should have made the decisions). The NLC told us that unless we discontinued the proceedings they would seek orders that “costs incurred up to 4:00 pm (AEDT) on Monday, 15 February 2021, be paid on the usual basis but costs incurred thereafter be paid on an indemnity basis”. Against that pressure, one of the applicants wrote to our lawyer (copying in the NLC’s lawyer) saying he wanted to withdraw and also resign from Nurrdalinji. The remaining applicants felt they had no choice but to discontinue at that point, even though we didn’t agree with the arguments the NLC had raised.
This means Beetaloo Sub-basin native title holders remain stuck with the NLC/TED PBC arrangement, under which we have no ability to manage our own business, and the NLC continues to make no efforts that we are aware of to help us replace it.
In both the 46th and 47th Parliaments, the committee heard that legislated consultation processes are either failing, or perceived to be failing, some of the Traditional Owners and Native Title holders in the Beetaloo. The committee acknowledges the complexity in identifying who must be consulted for consent purposes. However, in the committee’s view, this appears to be a long‑standing, deeply-rooted and highly contentious issue that must be more fully investigated and resolved.
The committee also heard that the tensions noted above have been replicated in the operations of the Top End PBC, where, as at the time of writing, several members of the NLC hold membership.
Given the concerns expressed by the Nurrdalinji Corporation, the committee is of the view that the NLC and the Top End PBC must work more constructively with the Traditional Owners and Native Title holders in the Beetaloo, to ensure that there is a common understanding of who must be consulted in relation to proposed gas activities and to ensure that the principles of FPIC are properly recognised and implemented.
In the committee’s view, this will involve region-wide, on Country consultations with all potentially affected groups and the provision of timely, up-to-date and accessible information about proposals affecting ‘Aboriginal Lands’ and native title rights and interests. It should also include respectful discussions concerning the ongoing suitability of the Top End PBC as the ‘prescribed representative body’ for the Beetaloo.
The committee recommends that the Northern Land Council and the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC collaborate with Native Title holders and Traditional Owners in the Beetaloo:
to implement the principles of Free, Prior and Informed Consent in all decisions relating to gas exploration and production in the Beetaloo; and
if requested, to formulate a plan to establish a new prescribed body corporate for Traditional Owners with native title interests and rights in the Beetaloo.
NT Government’s level of engagement
First Nations people and pastoralists continued to voice concerns about the NT Government’s level of engagement with them with respect to development of the gas industry in the Beetaloo. A key concern was the lack of information provided to Traditional Owners and Native Title holders to enable them to assess activity proposals and make informed decisions, including about consent. The Nurrdalinji Corporation submitted, for example:
Neither the Federal or NT government, the NLC or any gas companies have attempted to give us information about the combined or cumulative impact of fracking proposed for the Beetaloo Sub-basin.
We’ve never seen the Northern Territory government coming to the community and talking to us. We never see any of them coming… We’ve never seen any of the government coming out to talk to people. We could have talked to them then. We don’t see any of them. They go to other communities, but not to Borroloola.
Rallen’s Mr Langenhoven also reflected on the NT Government and gas industry’s lack of engagement, indicating that neither truly understands pastoralists’ concerns about fracking in the Beetaloo:
Millions of dollars have been spent by the government and the industry to justify why they can coexist, but no money has been spent on going to the pastoralists to find out what needs to be done to coexist. No-one's come to any of the properties, so how can they coexist? It's just been assumed, and reports have been written to say that they can. No-one has come and asked that question directly.
To illustrate his point, Mr Langenhoven gave evidence that Rallen, a multi‑million‑dollar company, had written to the then NT Minister for the Environment, the Hon Eva Lawler MLA, eight or nine times in relation to breaches of an Environment Management Plan by oil and gas companies operating on his property. Minister Lawler’s responses did not begin to address his grievances: ‘the same reply: no commitment, no looking into it, no trying to do something. It’s up to us to make sure that we regulate it'.
Mr Langenhoven also questioned the Morrison Government’s approach to consultation with key pastoral stakeholders:
I actually personally wrote a letter to [the then Minister for Resources and Water] Mr Keith Pitt to ask if it was possible that I could air my views with him. I got a reply back three weeks later saying he's too busy with ministerial activities to have a meeting with me, but two weeks later [Minister Pitt and the then Minister for Industry, Energy and Emissions Reduction, the Hon. Angus Taylor] were on a jet to Empire [Energy]'s well site to have a look. So [Minister Pitt] was in the territory. He could have spoken to us. He flew back to Darwin, had dinner and went back to Canberra. Pastoralists are big stakeholders in the Beetaloo basin, but it's not, 'Yes, I'll make an appointment, I'll try and see you,' just, 'Too busy'.
NT departmental response
Mr Paul Purdon, the Executive Director of Environmental Assessment and Policy at the NT Department of Environment, Parks and Water Security (DEPWS), outlined the measures taken by the NT Government to ensure appropriate engagement and consultation with relevant stakeholders:
A range of measures exist or have been implemented to ensure community and stakeholders are appropriately informed of onshore gas activities and their regulation and engage in decision-making processes…such as the consultation requirements under the Aboriginal Land Rights Act and the 'right to negotiate' provisions under the Native Title Act. I've mentioned the mandate that [the Aboriginal Areas Protection Authority] certificates are required, which means that custodians must be consulted in relation to the development. There's also the right that pastoralists have to enter into a land access agreement with gas companies, which is being put into place under new petroleum regulations.
In particular, under the environment regulations, all environment management plans in relation to drilling and fracking are published online for public comment for 28 days… And there will be further public consultation requirements should environmental assessment be required under the Environment Protection Act.
Broad community engagement is also being pursued through a community engagement and information program, to be delivered by CSIRO's land and water division, based in Darwin.
When legislative and operational concerns about the consultation process were put to DEPWS representatives, Ms Amy Dennison, Executive Director of Environmental Regulations, replied that the NT Government had neither reviewed the process, nor did it intend to:
The position of the Northern Territory government is that we don't think there needs to be further inquiries into this matter. The extent of stakeholder engagement [under the current law is already] extensive.
The committee heard that the NT Government is not sufficiently engaging with Traditional Owners, Native Title holders and pastoralists in relation to proposed gas developments in the Beetaloo. Those activities will directly impact these stakeholders and more broadly, communities within the region. In the committee’s view, the government should be setting a respectful and exemplary standard, which will also have the benefit of better informing government policy.
The committee recommends that the Northern Territory Government takes steps to ensure that the perspectives and interests of people working and living in the Beetaloo, including First Nations people and pastoral interests, are respected and upheld throughout the decision-making frameworks for petroleum and environmental approvals.
Protection and preservation of cultural heritage
As noted in Chapter 3, the Australian Government is partially responsible for cultural heritage protection in the Territory. The NT Government also has responsibilities under the Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act) and the Heritage Act 2011 (NT).
Several stakeholders raised the issue of cultural heritage protection in the Beetaloo. For example, Ms Baldwin from GetUp commented:
There are a lot of issues with the Native Title Act that have been raised over many, many years, particularly the issue of cultural heritage… We have such a unique cultural heritage here. Protection of cultural heritage shouldn't be part of the mining corporation funding agreements. We should be able to do that as a standard first and then talk about whatever business, industrialisation or mining people want to get on with.
The Sacred Sites Act establishes the Aboriginal Areas Protection Authority (the Authority), one of whose key functions is:
…to facilitate discussions between custodians of sacred sites and persons performing or proposing to perform work on or use land comprised in or in the vicinity of a sacred site, with a view to their agreeing on an appropriate means of sites avoidance and protection of sacred sites.
Dr Benedict Scambary, Chief Executive Officer of the Authority, presented a statement from the Authority’s Chairman, Mr Bobby Nunggumbjbarr:
We are concerned about onshore gas development in the Beetaloo but the munanga sacred sites law is strong and we work with custodians to make sure their sacred sites are protected. We worry about water. One third of the 15,000 sacred sites we have recorded in the Northern Territory are sacred water places [surface and groundwater]. We worry about access to sacred sites and that lack of access will interrupt our culture. We worry about resources. We are a small organisation and the task of sacred site protection in the Beetaloo basin is a big job. We want the gas industry to continue to walk with us and do the right thing. We want the government to make strong decisions that respect our rights and that respect our sacred sites. Our country, this country, deserves nothing less.
Dr Scambary highlighted resourcing issues that he indicated detract from the Authority’s ability to appropriately assess areas within the Beetaloo: ‘bit by bit we are gaining coverage of areas of prospectivity in the Beetaloo, but we don't have the resources per se to go and map the entire area’.
Regarding the extent of known sites in the Beetaloo, the Authority advised:
Within the Beetaloo Sub-Basin, the Authority has records of 80 sacred sites, of which 45 are known to be water-related… [T]here are likely to be many additional sacred sites in the Beetaloo Basin…but as the area has not been completely surveyed, some sacred sites are not yet recorded by the Authority.
Dr Scambary highlighted also that ‘there are water places in the Beetaloo basin that are both surface-water and groundwater related’.
The EDO raised concerns specifically about sub-surface features of sacred sites. Its submission noted Pepper Inquiry Recommendation 11.3: ‘that the Sacred Sites Act be amended to protect all sub-surface features of a sacred site’. The EDO did not accept the Authority’s legal advice that no legislative amendments are required. In the EDO’s view, ‘the government has opted not to implement this recommendation’, despite the Pepper Inquiry considering that the matter should be put beyond doubt.
The Pepper Inquiry also supported ‘a thorough assessment of cultural impacts…prior to the granting of any production approvals’. The inquiry recommended:
That a comprehensive assessment of the cultural impacts of any onshore shale gas industry must be completed prior to the grant of any production approvals. The cultural assessment must:
be designed in consultation with Land Councils and [the Authority];
engage traditional Aboriginal owners, native title holders and the affected Aboriginal communities, and be conducted in accordance with world-leading practice; and
be resourced by the gas industry.
According to the NT Government, this recommendation is 75 per cent complete and completion had been expected by the end of 2022, as part of the Strategic Regional Environmental and Baseline Assessment work program.
In October 2021, following the destruction of the Juukan Gorge, the Joint Standing Committee on Northern Australia handed down its final report, A Way Forward. This report contained eight recommendations, including a new legislative framework for cultural heritage protection at a national level. The government has committed to implementing seven of these recommendations, the only recommendation that the government has not committed to implementing is Recommendation 1. The implementation of all the recommendations in this report will be significant in protecting cultural heritage, not only in the Beetaloo, but right across the country.
The committee understands that the extent and nature of sacred sites in the Beetaloo has not been comprehensively mapped. These knowledge gaps could lead to inadvertent and irreparable damage to the sites by shale gas developments, and ultimately operations, in the region. In particular, the committee notes that there are sacred sites—or in the words of Dr Scambary ‘water places’—that are related to groundwater. The committee agrees with Pepper Inquiry Recommendation 11.3 and expresses its concern that there might be inadequate protection of these sub‑surface sites.
The committee recommends that the Northern Territory Government increase funding for the Aboriginal Areas Protection Authority, to enhance the identification, management and protection of sacred sites (including their sub-surface features) within the Beetaloo Sub-basin.
The committee recommends that the Northern Territory Government strengthen the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) to enable stop work orders where sacred sites are at risk of damage or destruction.
Throughout the 46th and 47th Parliaments, the committee heard that the development of a gas industry in the Beetaloo will create enormous economic opportunities for the NT and Australian economies. The committee also heard that some of this financial benefit should be returned to the Beetaloo and its communities. In the committee’s view, one way by which this could be achieved would be to invest in the protection of cultural heritage.
Australian Government partnerships with First Nations people
For nearly 30 years, multiple stakeholders have argued that there is a need to strengthen Australian cultural heritage protection laws. In October 2020, Professor Graeme Samuel, in the second statutory review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (the Samuel Review), reported:
The EPBC Act is not fulfilling its objectives as they relate to the role of Indigenous Australians in protecting and conserving biodiversity, working in partnership with and promoting the respectful use of their knowledge.
Professor Samuel found that one key reason why the EPBC Act is not fulfilling these objectives is:
There is a culture of tokenism and symbolism. Indigenous knowledge or views are not fully valued in decision-making. The Act prioritises the views of western science, and Indigenous knowledge and views are diluted in the formal provision of advice to decision-makers.
In late 2021, the former Australian Government announced an ‘historic partnership with the First Nations Heritage Protection Alliance to strengthen safeguards for Aboriginal and Torres Strait Islander heritage’ (the Partnership Agreement). The purpose of the Partnership Agreement is:
…to establish a Joint Working Group to develop advice on options to implement changes for modernising Aboriginal and Torres Strait Islander cultural heritage protections.
In late 2022, following the Albanese Government’s response to the Samuel Review, as well as its response to the destruction of Juukan Gorge, the Partnership Agreement was extended to restate its purpose and outcomes, including:
5(i) continue the current consultation process undertaken through the Partnership with a view to finalising by 30 May 2023 a recommendation to the Minister for comprehensive stand-alone legislation to better manage and protect First Nations cultural heritage.
(ii) plan and conduct further consultation on policy and implementation detail from April to December 2023.
The committee welcomes steps to strengthen cultural heritage protections and most especially, the development of those laws in partnership with First Nations people, who have lived on and cared for the lands and waters for tens of thousands of years. The committee looks forward to the introduction of the first tranche of reforms, as announced, in mid-2023.
The committee recommends that the Australian Government, in collaboration with the First Nations Heritage Protection Alliance and the Northern Territory Government, as part of the modernisation of Aboriginal and Torres Strait Islander cultural heritage protections, develop a requirement for activity proponents to provide a comprehensive cultural impact assessment for proposed gas production activities.
Over the course of nearly two years, the committee received considerable information and heard a range of views concerning the development of a shale gas industry in the Beetaloo.
After multiple announcements and funding commitments, the Australian Government’s plan to ‘unlock’ the vast gas reserves in the Beetaloo has not lost momentum.
For some committee members, it is difficult to reconcile this position with the Albanese Government’s recent actions to protect and conserve Australia’s environment.
The committee acknowledges that those actions—intended to turn around Australia’s lost decade of adverse environmental outcomes—are long overdue and signal that the Australian Government is now prepared to acknowledge and address environmental issues in a significant and meaningful way.
On this point, the committee draws attention to the volume of greenhouse gases that are predicted to be emitted from gas production in the Beetaloo, in addition to GHGs that are and would be emitted from other gas projects around Australia. On most assessments, the volumes are staggering.
In the committee’s view, it would seem a natural corollary of the Climate Change Act 2022 and Australia’s recent international commitments under the Paris Agreement, to ensure that lifecyle GHG emissions generated by shale gas development in the Beetaloo are fully addressed.
In addition, in the 46th and 47th Parliaments, stakeholders emphasised their concerns about the multiple potential impacts of gas exploration and production, including in relation to precious water resources. In the driest continent on Earth, this is not a trivial concern. It raises very serious questions concerning the sustainability of life and livelihoods in the territorial centre, as well as risking irreversible damage to the culture and identity of First Nations people. These are concerns that merit the utmost attention.
In addition to these environmental concerns, there is a deeply human element to ‘unlocking’ gas reserves in the Beetaloo. While certain corporations and local interests, the wider Territory, and the nation as a whole might benefit economically from gas extraction, many local communities in and around the Beetaloo are bearing, and will continue to bear, the brunt of exploration and production activities. From increased road usage to damage of personal property and to Country, it is not clear that the broader benefits will outweigh these disadvantages. The committee believes it is incumbent on development proponents to clearly identify and articulate the benefits, and ensure they are shared more broadly across the region.
The committee commends its report to the Senate.
Senator Sarah Hanson-Young