Chapter 6First Nations views and engagement
Introduction
6.1This chapter begins by outlining the significance of the proposed Middle Arm Industrial Precinct site to the Larrakia people. It then explains First Nations consultation and recognition requirements in the Northern Territory (NT). The second part of the chapter canvasses key concerns and suggestions received from First Nations submitters and their supporters in relation to the proposed development.
6.2The NT Government’s views on these issues, as well as evidence received on First Nations engagement by Tamboran Resources and Empire Energy, are discussed towards the end of the chapter.
Significance of the area to the Larrakia people
6.3The Middle Arm development is proposed to be located on the traditional lands of the Larrakia People, who continue to have deep cultural, spiritual, and recreational ties to the region.
6.4Ms Mary Williams, of the Larrakia Nation, explained that the Larrakia people are the traditional owners of Darwin and the surrounding regions, and, as the ‘saltwater people’, their lives ‘are dependent on the coast and seas’.
6.5Larrakia elder and Traditional Owner, Mr Eric Fejo, highlighted the significance of the Middle Arm proposal for Larrakia culture:
Darwin Harbour and adjacent peninsulas (Middle Arm, East Arm and West Arm) are culturally significant for Larrakia. The sea and the land have sustained the Larrakia, and this is evidenced by archaeological sites and cultural material…These sites and artefacts are not just evidence of a bygone era, they are evidence of a living environment which contain the spirits of our ancestors who continue to live on the country. We the Larrakia see the cultural and natural environment as one, connected together. If you destroy the natural environment, then you also destroy the cultural environment. Middle Arm represents the convergence of the cultural and natural environments. Culture runs in the country. This is the essence of who we the Larrakia are. Without our country we are nothing…I still practice rites of looking after country by fishing and crabbing around Darwin Harbour and the three Arms and our estates, showing through rites of passage with our future generation.
6.6Likewise, senior Larrakia elder and the lead applicant in the Darwin native title claim, Mr William Risk OAM, argued that the proposed development would have direct and indirect impacts on First Nations values:
The Middle Arm project will clear 1500 hectares of the Middle Arm peninsula. There is also potential for remaining areas of the peninsula, as well as the Harbour itself, to be adversely impacted by the project, because of the toxic runoffs, discharges, and pollution. This could be the most impactful development on Larrakia land that I have seen over my lifetime. Clearing this peninsula to make way for industrial expansion has the potential to irrevocably destroy Larrakia cultural values, including our tangible and intangible cultural heritage. In fact, the whole Darwin Harbour catchment, in its great ecological diversity, is vital to the continuity of Larrakia culture and society and it at grave risk from this project. The pre‑contact archaeological record of the Middle Arm Peninsula is exceptional on a national level; shell mounds/middens and archaeological scatters are located throughout the peninsula. Additionally, petroglyphs located there constitute the only remaining Indigenous rock art in the entire Darwin region. Darwin Harbour contains important sacred sites, primary spiritual responsibility for which rests with Larrakia custodians. In addition, there are innumerable intangible stories, dreamings, rituals, practices and ecological knowledge held by Larrakia people about Middle Arm.
First Nations consultation and recognition requirements in the NT
6.7Most NT development proposals, particularly those located in remote areas, will be on land subject to Aboriginal rights and/or interests. Consulting with Aboriginal communities in a culturally appropriate manner is a statutory requirement of proponents undertaking an Environment Impact Statement (EIS) process under the Environment Protection Act 2019 (NT)(NT EP Act).
6.8In the NT, First Nations stakeholders must be consulted about proposals and given opportunities to discuss and influence the outcomes of actions and decisions that may affect them. This aligns with the ‘free, prior and informed consent’ (FPIC) principle of the United Nations Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP) which provides internationally recognised principles for the treatment of Indigenous peoples regarding proposals that affect them.
6.9In practice, this means that First Nations communities must be given the opportunity to make well-informed decisions in a culturally appropriate manner that is free from coercion and sufficiently in advance of approvals or commencement.
6.10As such, the project’s proponent, the NT Government, is required to ensure that the Larrakia community is provided with adequate information to assist their understanding of the potential environmental impacts of a development, and to seek and take account of community input.
6.11As part of the NT Environment Protection Authority’s (EPA) assessment, it must also ‘recognise the role that Aboriginal people have as stewards of their country as conferred under their traditions and recognised in law, and the importance of participation by Aboriginal people and communities in environmental decision-making processes.’
Key issues raised by inquiry participants
6.12Some inquiry participants raised concerns regarding the proposed Middle Arm development. Broadly, issues raised focused on the following themes:
some First Nations opposition to the proposed development;
perceived lack of government adherence to the principles of FPIC;
the commitment of Commonwealth funding prior to the completion of key assessments and consultations;
the NT Government’s engagement with First Nations; and
opportunities for public consultation on individual projects under the NT strategic environmental assessment process.
These topics are discussed below.
First Nations opposition to the Middle Arm Industrial Precinct
6.13The inquiry received evidence that some First Nations people oppose the proposed Middle Arm Industrial Precinct. For example, Mr Risk gave the following evidence:
I have sat back and watched as developments occur without Larrakia consultation, much less consent…I am overwhelmed by the scale of what the NT and Australian Governments are pursuing at Middle Arm, one of the most precious places to Larrakia people. The plans for this area exceed anything that has ever been developed on Larrakia Country.
6.14Mr Fejo provided similar evidence:
Make no mistake, the gas industry in Darwin has been constructed at Middle Arm on a foundation of profound distress and tragedy for Larrakia people…The Middle Arm gas and petrochemical hub is the latest incarnation of the violence by the state on Larrakia people. It…is being pursued by the NT Labor Government without the consent of Larrakia people…It should not be progressed in any way shape or form, until our claims are addressed. Enough is enough.
The actions of the Federal and Northern Territory governments, development proponents and political lobbyists show clearly that they consider our rights to be non-existent and my culture and religion as worthless.
6.15Ms Williams echoed these sentiments:
As traditional owners, custodians and descendants of the Middle Arm precinct, we express our deep concerns regarding the proposed developments in this significant area. Our connection to this land is ancient and profound. It is rooted in generations of stewardship and spiritual reverence. The Middle Arm precinct is not merely a piece of land; it's our cultural heritage and traditional identity. Our ancestors have lived, hunted and performed sacred ceremonies on this land for countless generations, leaving behind a tapestry of history and wisdom. The proposed development threatens to desecrate this sacred landscape, endangering culturally significant sites, disrupting ecological balance and eroding the spiritual essence of the land. The impacts of such actions extend far beyond the physical realm. They strike at the heart of our people and our community, undermining our cultural continuity and collective wellbeing.
6.16Similarly, the Larrakia Reference Group, a group of senior Larrakia leaders, stated that ‘we have obligations to protect and care for our country and the Middle Arm Industrial Precinct is in conflict with this’. The Larrakia Reference Group argued that ‘governments often ask for our input about major projects but never genuinely take our advice on board. Many of us on this Reference Group would veto this project if we could’.
6.17Likewise, Aboriginal Medical Services Alliance Northern Territory (AMSANT) stated that ‘the negative impacts from the Middle Arm project far outweigh any potential benefits to Aboriginal people across the NT and should not proceed’.
6.18Meanwhile, the Nurrdalinji Native Title Aboriginal Corporation, a group of 60+Native Title holders located in the Beetaloo Basin area, pointed out that the Final Report of the 2018 Scientific Inquiry into Hydraulic Fracturing of Onshore Unconventional Reservoirs in the Northern Territory (the Pepper Inquiry) identified ‘almost universal’ concerns from First Nations communities ‘about and strong opposition to, the development of any onshore shale gas industry on their country’ which would be closely associated with the proposed Middle Arm Industrial Precinct.
6.19In relation to the proposed precinct itself, the Nurrdalinji Native Title Aboriginal Corporation submitted that, ‘Larrakia Traditional Owners have made it clear they have not been spoken to, and if they had, they would say they are opposed, not least due to proximity to one of the only rock art sites in Darwin that have survived colonisation’.
6.20Indeed, the Environmental Defenders Office (EDO) provided evidence that the Larrakia people had publicly called for the precinct to be halted in May 2023, ‘due to concerns with the consultation process, the risk of cultural heritage damage and destruction, and the failure of communication by governments and regulators’. The EDO noted that the Larrakia were concerned about ‘another Juukan Gorge-style scenario’.
6.21Mr Risk was sceptical that the NT Government would ensure funding reached First Nations communities, stating ‘as I see it, the profits from this development will go to the government, and the private operators at Middle Arm’.
6.22In 1999, the Phillips Oil Company, which later merged with Conoco Inc. to become ConocoPhillips, signed an agreement with the Larrakia people over the development of a proposed Liquified Natural Gas (LNG) plant at Wickham Point in Darwin Harbour. This facility is now operated by Santos. This agreement included employment opportunities for the Larrakia people, environmental safeguards, royalty payments and a promise to facilitate the transfer of the land to the Larrakia people at the end of the lease.
6.23In 2018, INPEX signed a separate agreement with the Larrakia Advisory Committee. This agreement was developed over two years and would run for as long as the INPEX Ichthys LNG facility at Bladin Point was operational. This agreement sets up a trust fund that will, over the 40-year lifetime of the facility, contribute a total of $24 million into the trust. Prior to this agreement being formalised, INPEX had been working on several benefit programs in the leadup to the delivery of the current package, including supporting Larrakia education through scholarships and a school participation program.
Lack of government adherence to FPIC principles
6.24The inquiry heard from some inquiry participants that the FPIC of First Nations communities has not been obtained by the Australian and/or NT Governments in relation to the proposed Middle Arm Industrial Precinct.
6.25For example, the Larrakia Reference Group rejected the NT Government’s statement that the Territory ‘is committed to a Larrakia led approach, adhering to the principles of FPIC throughout the life of the project’. The Larrakia Reference Group argued that:
…this has not been realised at any stage of this project so far. Statements like this are deceptive and misleading as that is not what has been happening on the ground. We are not being asked to make any integral decisions about Middle Arm.
6.26The Larrakia Reference Group explained how they felt excluded from the process:
The NT Government has not prepared culturally appropriate information to help us understand… No one from industry has spoken to us about their plans for the Middle Arm Industrial precinct. We note that the NT Government announced the five proponents without speaking to us about it. We do not feel like we have been a part of this process. If and when they do speak with us, we would like them to provide information in plain English that is culturally appropriate.
6.27The Larrakia Reference Group argued that the community deserved to be provided with appropriate information:
The Middle Arm Industrial Precinct is proposed to be built on our country without our consent…It is hard for us to talk about the true depth of the cultural heritage impacts when we have been given so little information about the Middle Arm Industrial Precinct…We deserve to have information presented to us so we can fully participate in the decisions and approvals around the Middle Arm Industrial Precinct at every stage. How can we tell you how our cultural heritage will be impacted if we do not know what is happening at Middle Arm?
6.28The Larrakia Reference Group was firm in its evidence that a ‘lack of understanding is not our consent’.
6.29Senior Larrakia elder, Mr Risk, gave specific examples of instances in which the NT Government had failed to adhere to the principle of FPIC for the proposal, including that:
a four-person cultural consultative committee was established, chaired by a representative of the NT Government. This committee has met infrequently, has no authority under Larrakia tradition and was rejected as a ‘Larrakia’ committee by its own committee members;
a cultural heritage survey has been undertaken by a non-Indigenous company called “EarthSea” as part of the Strategic Environmental Assessment. This survey was not undertaken with the authority of Larrakia people (although it is possible that Larrakia people were involved in the survey);
an attempt to map Larrakia cultural values was proposed as part of the social impact assessment, but this mapping has not been conducted. This means that the EIS (if released) will not contain an assessment of the cultural values of Middle Arm and Darwin Harbour; and
Larrakia sacred site custodians have not yet provided an authority certificate under the NT Sacred Sites Act for this project.
6.30Likewise, Larrakia elder and Traditional Owner, Mr Fejo, stated that, ‘Middle Arm must not proceed without the FPIC of Larrakia people…Larrakia should be given proper information and advice to make FPIC decisions’.
6.31This evidence was supported by AMSANT, which advised that there has been a ‘lack of engagement of local Aboriginal leaders/organisations in the development process to date which is extremely disappointing’. AMSANT argued that lack of adequate consultation with the Larrakia people meant that FPIC had yet to be obtained and the project should be halted until consultation had occurred:
Consultation with Larrakia people on the current Middle Arm development has again been completely inadequate…this has resulted in the absence of FPIC. The project should be now halted until genuine and thorough consultation has been conducted and this consultation should occur in partnership with the key Larrakia organisations. Once consultation has been conducted, the outcome should be respected.
6.32Several non-First Nations organisations raised similar concerns. For example, the Wilderness Society argued that the ‘absence of genuine consultation with communities and the failure to obtain FPIC from Traditional Custodians is evidence of integrity lapses and questionable decision making regarding this…proposal’.
6.33In a similar vein, the Australian Conservation Foundation (ACF) submitted that:
Despite the establishment of a ‘cultural consultative committee’ by the NT government there is still much that needs to be done to assess impacts to cultural heritage and to receive the FPIC of First Nations people. A Larrakia‑led and designed cultural heritage and FPIC cultural values assessment should be completed, endorsed by the Larrakia people, and incorporated into the Environmental Impact Statement and environmental assessment process for the Middle Arm precinct…Commonwealth funding related to Middle Arm should be made contingent upon FPIC of Larrakia people.
6.34Likewise, the Lock the Gate Alliance submitted that:
Middle Arm is one of the most important parts of Darwin Harbour to the Larrakia people as it contains middens, sacred sites, rock carvings, stories and rituals…[yet] The Larrakia were not properly consulted in the early stages of Middle Arm planning.
6.35On a similar note, the EDO argued that there has been a failure to ensure the FPIC of First Nations communities for the development:
EDO holds several concerns about Middle Arm, including…the process by which the assessment and approvals will take place…the strategic assessment for the precinct and associated regulatory regime; as well as the failure of these processes to properly ensure the FPIC of First Nations communities in the area.
FPIC—ability to influence decisions and explicit consultation requirements
6.36The EDO explained that the duty to obtain FPIC means that ‘through consultations, First Nations people must have the ability to alter the decision at issue or to develop accommodations of which they are satisfied meet their interests at stake’ rather than simply ‘have their views heard’ or enjoy a ‘mere right to be involved’.
6.37The EDO compared the principle of FPIC with the consultation requirements with First Nations communities for approvals under relevant Commonwealth and NT environmental laws. The EDO argued that the assessment and approval processes at the Commonwealth and Territory levels are ‘inadequate’ when it comes to ensuring FPIC for First Nations communities.
6.38For example, the EDO highlighted the Strategic Assessment Agreement (discussed in Chapter 5) between the Australian and NT Governments, which sets out the intention to create a Program for endorsement by the Federal Environment Minister. The EDO explained: ‘that approval operates as, and stands in the place of, the approvals process usually followed under the EPBC Act for controlled actions that would have a ‘significant impact’ on matters of national environmental significance’. The EDO identified that, while the Strategic Assessment Agreement provides endorsement criteria for a draft Program, the ‘endorsement criteria does not mention First Nations communities and provides no requirements for consultation or consent of First Nations communities’.
6.39Regarding the assessment under the EPBC Act, the EDO raised concerns that while the EPBC Act requires approvals for actions that may impact First Nations’ heritage, and sets out methods of assessment, none of the methods ‘embed the consultation with or consent of First Nations people as part of the assessment and decision-making process’. The methods only allow ‘for a period where the public may make a comment on the assessment in writing’.
6.40The EDO advised that, under the Environment Protection Act 2019 (NT) (NTEPAct), there are two general duties on proponents of projects that reflect some elements of the duty to obtain FPIC, however, ‘these duties, and statement of objects of the [NT EP] Act, do not…give rise to FPIC obligations’. For example, the EDO noted that the NT EPA’s guidance for proponents states that FPIC is an ‘important consideration’ that must be reported on in the relevant impact assessment. However, the EDO argued that the ‘key inconsistency of this guidance with FPIC is that First Nations people do not have the right to alter the outcome of decision-making under the [NT] EP Act’.
6.41The EDO also identified that, once a development is referred for strategic assessment, the NT EPA’s recommendations and the Minister’s decision to accept the referral, the level of assessment, and approval, does not require any specific consultation with First Nations, the process only provides for general public consultation. This is contrary to a fundamental objective of the principle of FPIC.
6.42The EDO noted that the proposed Precinct is likely to need approvals under the Planning Act 1999 (NT), Water Act 1992 (NT), and Waste Management and Pollution Control Act 1998 (NT). However, it argued that none of these processes sufficiently incorporate the principle of FPIC.
6.43The EDO identified that the proposed Middle Arm Industrial Precinct may also require a certificate under the Aboriginal Sacred Sites Act 1989 (NT) to enable work on or near sacred sites. However, while the certification process provides some protection to sites, the legislation does not specify how the Aboriginal Areas Protection Authority must conduct consultation with Custodians and therefore does not ensure compliance with the principle of FPIC. As noted in Chapter 2, a sacred site containing significant Larrakia rock art is located on Middle Arm Peninsula.
6.44The EDO was of the view that the Program and EIS Terms Of Reference (TOR) must compensate for the above explained deficiencies by clearly requiring FPIC for the proposed Middle Arm Industrial Precinct.
6.45However, the final EIS TOR did not require this, and more broadly requires the proponent (NT DIPL) to provide information on:
stakeholder consultation to date;
proactive measures to consult with Aboriginal communities, in a culturally appropriate manner;
how the proponent has sought to document community knowledge and understanding (including scientific, local and traditional knowledge) of the social, ecological and cultural values of areas that may be impacted by implementation of the strategic proposal; and
recommended measures to protect the rights and interests of Aboriginal peoples in relation to areas that may be impacted by implementation of the strategic proposal.
Commitment of funding prior to First Nations consultation
6.46Some inquiry participants highlighted that funding for the proposed Middle Arm Industrial Precinct had been agreed before key consultations and assessments on the project had been completed.
6.47For example, the inquiry heard from Mr Risk that Commonwealth funding was committed before the Larrakia people had been consulted about the planned development:
Both the government and the Opposition announced they would fund Middle Arm in April 2022 during the federal election campaign. This was done without anyone speaking to Larrakia about these plans, and in the same election campaign where the Albanese Government had committed to supporting a constitutionally enshrined Voice to Parliament. You would have thought the very least the federal government could have done was to seek the views of us and hear our voice first before committing this funding. That this funding has been committed without the consent of Larrakia without an environmental impact assessment, without our community even understanding the basics of what is proposed, is a national disgrace.
6.48Mr Risk also outlined the broader context of the Australian Government’s funding commitment:
I am deeply concerned that the Middle Arm project has progressed to its current stage and secured a Federal funding commitment without the FPIC of the Larrakia people. The Australian Government has committed to implement the recommendations of the Juukan Gorge Inquiry, the Samuel review into the EPBC Act, and the Australian Government’s guidance for proponents on best-practice Indigenous engagement for assessments under the EPBC Act. These principles have not been adhered to by the Northern Territory and Australian Governments with respect to the Middle Arm industrial precinct.
6.49Similarly, AMSANT submitted that ‘the Federal Government has confirmed $1.5 billion in funding to the Middle Arm development, without due process’.
6.50Similar observations were made by the ACF and Lock the Gate Alliance which argued that the $1.5 billion commitment for common user infrastructure occurred ‘without a cultural heritage assessmentas required by Infrastructure Australia’s Assessment Framework’, or ‘consultation with the Larrakiapeople’.
Quality of NT Government engagement
6.51The NT Government advised that it had established a Cultural Consultative Committee (CCC) to support direct engagement with Larrakia families regarding the proposed precinct. The CCC is made up of key Larrakia organisations, and five meetings have been held. Based on discussions with the CCC, the NT Government organised initial information sessions for nine Larrakia family groups. The NT Government advised that tailored resources have also been developed to support engagement with Larrakia families, including a monthly Larrakia newsletter, project updates, social media posts and flyers which were reviewed by the CCC before circulation.
6.52However, the Northern Land Council (NLC) raised concerns about the quality of the government engagements held with Larrakia communities. For example, the NLC outlined the lack of cultural competency during engagements:
…there appears to be little emphasis on cultural competency or safety. Meetings of the [cultural consultative] committee are driven by NT Government staff and run predominantly in work hours in accordance with a set agenda. Communication materials are not in language or developed with Larrakia people and meetings have struggled to attain quorum. To date, the Committee process has been more akin to a 'check-box' exercise than a two‑way dialogue grounded in FPIC.
6.53The NLC advised that the following feedback had been provided from senior Larrakia people from eight family groups to the NT Government:
members were disappointed that government representatives did not finish their presentation to the Larrakia Reference Group;
there appeared to be minimal effort to explain complex material or use plain language. Larrakia Reference Group members said they found it difficult to get a sense of the proposed development, and what legal processes need to be followed and why; and
members of the Larrakia Reference Group were not clear about what aspects of the development they were being consulted about, and to what extent their feedback or recommendations would be considered or incorporated into planning.
6.54The NLC further advised, that while the NT Government had attempted to arrange consultations with Larrakia family groups in September and October 2023 to discuss the precinct proposal, three of eight meetings had no attendees.
6.55Indeed, the NLC was further concerned that it had been appointed to the NT Government’s committee ‘for the purpose of representing all Larrakia families without prior discussions with, or the consent of, Larrakia families’.
NT Government views
6.56According to the NT Government, the CCC is guiding a Larrakia-led approach to developing a cultural heritage management plan to mitigate the impacts of development. At a public hearing, the Chief Minister of the NT, the Hon Eva Lawler MLA, told the committee that:
There is no native title on that site. That land is Crown land or land that's owned by the Land Development Corporation in the NT—land for all Territorians. We will continue our consultation, our conversations with the nine Larrakia family groups, like we do and like any Territory business or any Territory organisation does in the Northern Territory when we're dealing with native title or when we're doing any development in the NT.
6.57As noted in Chapter 2, the cultural impacts of the proposed development are required to be assessed as part of the NT EIS. At the public hearing, the NT EPA explained that individual proponents at Middle Arm are required to undertake cultural mapping and impact assessments as part of the EIS:
…the [EIS] terms of reference…require the proponent to undertake a cultural values mapping and impact assessment study… I understand that it is underway. We would expect to see that as part of all the environmental documentation that comes to us hopefully by the end of this year… there are very clear obligations for the proponent to consult with Aboriginal communities and get information about values and traditions and incorporate those studies into an impact assessment document.
6.58In response to committee questioning about how the NT EPA would verify this information provided to it by project proponents, the NT EPA advised that it would expect that the material received would have ‘the FPIC of the traditional owners involved and affected by that proposal…[and be] done in accordance with our legislation and other pieces of legislation’. Where material is assessed as incomplete, the NT EPA advised that it has powers to ‘seek independent external expert advice’.
First Nations engagement by Tamboran
6.59Tamboran Resources (Tamboran) advised that it ‘works closely with local communities, landowners, the NLC and Native Title Holders to ensure compliance with all applicable regulatory requirements in the areas in which we operate’. Tamboran argued that it ‘is committed to ensuring…that cultural heritage is protected and safeguarded. We are committed to working with Native Title Holders and the NLC to ensure a sustainable future for their communities.’
6.60At a public hearing, Tamboran explained how it is engaging with First Nations communities:
We've been engaging with First Nations people for over 10 years that I have been in this role with the company. We have very positive and constructive dialogues with native titleholders associated with the areas in which we have been exploring, such as the Beetaloo Basin, again, for over 10 years… these are native title lands, so we are under the rules and regulations associated with the Native Title Act 1975 in which the Northern Land Council is the statutory representative. We rely on the advice of the Northern Land Council to guide how Tamboran engages activities associated with the native titleholders and traditional owners and will continue to do so.
6.61Despite these assurances, concerns have been raised regarding the way in which Tamboran has engaged with First Nations groups in relation to its fracking proposal in the Beetaloo basin. For example, according to the Nurrdalinji Native Title Aboriginal Corporation, impacts from the proposed activity were not communicated clearly, and little attempt was made to overcome the language barrier faced by some First Nations groups. The Nurrdalinji Native Title Aboriginal Corporation also stated that Tamboran highlighted the potential economic benefits for First Nations groups while not fully explaining all the risks to country and water.
First Nations engagement by Empire Energy
6.62Empire Energy, while not a proponent for the proposed Middle Arm Industrial Precinct, has been a leading proponent in the development of Beetaloo Basin shale gas resources and anticipates making gas available to manufacturers who could operate in the proposed Middle Arm Industrial Precinct.
6.63As part of its submission, Empire Energy stated that it has ‘a long and successful history of respectful engagement with traditional owners over the last decade’ and that they ‘have the full and informed consent of traditional owners for our activities’.
6.64As part of the project conditions for its Carpentaria Pilot Project, which seeks to expand shale gas activities in the Beetaloo Basin, Empire Energy was required to identify First Nations cultural sites and avoid them during operations. To meet this condition, Empire Energy engaged traditional owners to accompany archaeologists on site surveys.
6.65In January 2024, Empire Energy reported to the NT Government that it had breached its project conditions by failing to notify the NT Government’s Heritage Branch that First Nations stone tools had been found and subsequently moved from the site of one of its exploration wells in August 2022.
6.66In a media release, the Nurrdalinji Aboriginal Corporation raised concerns surrounding a deal made between Empire Energy and the NT Government to purchase gas from the Carpentaria Pilot Project, which has yet to receive Ministerial approval. They highlighted concerns they have with the environmental impacts of the proposed project, noting that with the four wells already drilled there have been breaches reported to the NT Department of Environment, Parks and Water Security, including wastewater leaks, illegal land clearing and a lack of protection of cultural heritage at the sites.
6.67The Nurrdalinji Aboriginal Corporation explained that Empire Energy’s consultation with First Nations for the Carpentaria Pilot Project had been inadequate for various reasons:
…to date, our people have had limited and very unsatisfactory engagement with Imperial [Imperial Oil & Gas, a wholly owned subsidiary of Empire Energy] about its plans to frack our country as set out in the EMP. Imperial has advertised a number of meetings but never taken the time to properly judge if people understand the full scale of work planned and whether our people properly consent to the works, or not… Imperial has not completed anticipated consultations as required for the EMP to understand impacts on water and country…A promise of future consultation before work begins…is not sufficient consultation…
Contrary to [its] claim, Imperial has not engaged comprehensively with impacted native title holders and there is no partnership between Imperial and affected native title holders. There is widespread confusion and concern among native title holders about what Imperial is planning to do in the short and longer term and what the risks are to their country, land and water… No interpreters are present at meetings, as recommended by the Pepper Inquiry, for example for those held in August 2023. The elders had to rely on younger family members to have even some hope of understanding the material, presented in text heavy power points which were explained in a hurried and incomprehensible way… It is clear that there is no free, prior or informed consent from those whose country will be fracked.
Calls for genuine consultation with First Nations
6.68Several submitters called for the NT and Commonwealth Governments to conduct genuine consultation with First Nations on the Middle Arm Industrial Precinct proposal.
6.69For example, Ms Williams implored the committee ‘to hear our voices and take decisive action to protect the Middle Arm precinct. We call for comprehensive consultation with traditional owners, custodians and descendants affected’.
6.70The Nurrdalinji Native Title Aboriginal Corporation pointed out that, ‘almost always, Traditional Owners and native title holders are at a political, strategic, legal, financial and information disadvantage to the companies with which they are negotiating’.
6.71Mr Fejo argued that governments had taken advantage of financial stress within Larrakia communities as well as exploited divisions between families in order to gain project approvals.
6.72The Larrakia Development Corporation called for government funding to allow First Nations to genuinely engage with government approval processes. The Larrakia Development Corporation suggested that governments should fund Larrakia to support them ‘to obtain independent professional advice…[and] bring families to meetings to discuss and determine their input into approvals processes’.
6.73On a similar note, the NLC raised concerns about government reliance on the CCC, advising that, ‘there has been no funding provided to assist the Land Council to meet the costs of wide and meaningful consultation [via the CCC]’.
6.74Similar calls for funding came from Larrakia elder, Mr Risk, who also recommended that the Commonwealth Government provide funding for an independent Larrakia cultural heritage and cultural values assessment (including the engagement of an independent archaeologist and anthropologist) as part of the EIS for Middle Arm. Mr Risk also called for the Australian Government to halt the release of the EIS until this cultural assessment had been undertaken and incorporated.
6.75Representatives of the Top End Aboriginal Coastal Alliance (TEACA), a First Nations operated and controlled organisation with 100 per cent First Nations membership, set out that its purpose is to ‘represent the interests of, advocate for, and to enhance the capacity of Aboriginal peoples of the Top End to directly engage with Government, industry, and non-Government organisations in a culturally appropriate manner in relation to matters that may affect their sea country and coastal estates and other areas’. TEACA noted that it ‘is not culturally appropriate for TEACA to provide comment in relation to Larrakia country’ but emphasised the importance of consultation generally ‘for projects such as the Middle Arm Industrial Precinct’.
Next chapter
6.76The following chapter presents the committee’s view.