In Kimberley, traditional owners sidelined in fracking discussion

In Western Australia, state appears to be backtracking on letting traditional owners decide what is best for the land.

In Kimberley, traditional owners sidelined in fracking discussion
The Southern Dampier Peninsula is home to the world's oldest continuing culture [Courtesy of Damien Kelly Photography]

Kimberley, Australia – The Dampier Peninsula, in the remote Kimberley region of Western Australia (WA), Australia’s largest state, is internationally renowned for its natural wilderness areas and as the home to the world’s oldest continuing culture.

Recently, the Peninsula – which sits upon the immense Canning Basin gas reserve – has been the subject of a vigorous environmental debate.

Last month, the WA Government officially lifted a statewide moratorium on hydrofracturing, or fracking, technology, two years after it commissioned an independent scientific inquiry into the process. 

Fracking, a controversial mining method, involves injecting a high-pressure fluid of sand, water and chemicals into a drilled well to free natural gas from rocks deep underground.

While widespread across the United States, it is banned in some countries including France due to links between seismic activity and water contamination. 

The release of WA’s Independent Inquiry last November resulted in the government enforcing a ban on fracking across 98 percent of the state’s land mass.

It also prompted a series of government commitments that were described by state premier Mark McGowan at the time as “world-class,” as they appeared to set a precedent for future government dealings with traditional owners. 

Traditional owners were to be afforded greater autonomy over whether mining could take place on their lands, in the form of a “right of consent”.

This is a right not currently enshrined in Australian legislation, where under the seminal 1993 Native Title Act (NTA), Aboriginal and Torres Strait Islander people are only entitled to negotiate over industrial development. 

Additionally, the state government promised that the Dampier Peninsula would be exempt from fracking, in spite of its proximity to the Canning Basin. The specific boundaries covering the Dampier Peninsula ban would be “developed in consultation with the local community”. 

In less than a year, the WA Government appears to have backtracked on these commitments, raising concerns that it has promised what it cannot deliver.

In July, with the publication of a fracking implementation plan, it was reported that the traditional owners’ “right of consent” would not apply to exploration applications.

The state’s minister for mines and petroleum, Bill Johnston, told Al Jazeera that this was because fracking exploration involved a less-intensive process compared with extraction.

“The impacts of fracking during the production stage are orders of magnitudes greater than the impacts occurring during the exploration stage,” Johnston said. “It’s also not possible to know what will be found during exploration.” 

The Nyikina Mangala People are disappointed that the definition of the boundaries has occurred without formal consultation.

by Walalakoo Aboriginal Corporation

Now, the state government stands accused of consulting with mining companies but not the broader community in establishing the exact boundaries of the Dampier Peninsula ban.  

At the beginning of September, WA’s Department of Mining and Petroleum released a map of exploitable areas of the Dampier Peninsula which closely correlate with existing petroleum titles. 

One of the holders of these titles, mineral company Buru Energy, subsequently issued a press release outlining that it had “worked constructively” with the state government to ensure the boundaries of the fracking zone were appropriate “in relation to the company’s existing petroleum titles”.

Buru Energy was contacted for comment but did not respond.

Premier McGowan has since conceded in a radio interview on the Australian Broadcasting Corporation that a major influence on where the boundary was drawn was concern that the state could be subjected to compensation claims from existing leaseholders. 

Martin Pritchard, the director of local environmental NGO Environs Kimberley, told Al Jazeera that, in contrast, there had been no consultation with stakeholders in the wider Kimberley community. 

“We were very concerned when the McGowan government backtracked on its commitment to grant veto rights to traditional owners with regard to exploration leases,” Pritchard said.

“Now, we are seeing Premier McGowan breaking another promise by consulting mining companies about the fracking ban on the Dampier Peninsula, but not the local community. We consider this a betrayal of his commitment to the people of Western Australia.” 

At least one affected traditional owner group was also not consulted. 

In a media statement provided to Al Jazeera, the Walalakoo Aboriginal Corporation (WAC), outlined that the Dampier Peninsula fracking ban boundaries were defined “without formal consultation” with the Nyikina Mangala People.

The WAC holds and manages on trust the native title rights and interests of the Nyikina Mangala traditional owners, which fall partly in the south eastern portion of the Dampier Peninsula  

“The Nyikina Mangala People are disappointed that [the definition of the boundaries] has occurred without formal consultation,” the statement reads.

“We are also disappointed that we were not provided the opportunity to propose that the national heritage-listed area of the Fitzroy River be included in the state’s fracking ban area.”

Western Australia fracking
Scenes from the Dampier Peninsula, where the government has lifted a statewide moratorium on hydrofracturing, or fracking [Courtesy of Damien Kelly Photography]

However, this is refuted by the government department responsible for the fracking implementation plan.

Jeff Haworth, WA’s department of mines, industry regulation and safety acting deputy director general, told Al Jazeera that “information regarding the boundary for hydraulic fracture stimulation on the Dampier Peninsula has been provided to affected native title claimants and native title holders”.

With such a central element of the implementation plan in dispute, questions are now being asked as to whether the government’s central commitment – the right of consent – may also be compromised or diluted. 

There is currently no definitive answer as to how the government plans to enforce the commitment, with Johnston telling Al Jazeera that “a number of options are currently being examined by the implementation group on the best way to give farmers and traditional owners the right to say no to fracking”. 

However, native title expert Greg McIntyre, a professor and barrister, told Al Jazeera that current legislation does not prevent the state from giving native title parties more say than they have under the Native Title Act.

“Because the state is granting the title to extract oil and gas, it can decide what pre-conditions it will impose on extraction under a licence it may choose to grant,” McIntyre said. “That could include that native title holders agree to extraction, thus giving them a veto over extraction.

“The state could amend state legislation to allow for such a veto, or could possibly adopt a policy that it will exercise its discretion not to grant a licence if native title holders do not consent to such a grant being made.”

The Dampier Peninsula community is sure to be watching the state government’s next move closely.

Source: Al Jazeera