Fair Warning from Scarborough

The Voice was a “modest” proposal, according to our Prime Minister, nothing more than advice to Canberra guaranteeing better ways to end indigenous disadvantage. Had it been that simple, many more Australians, all keen to “close the gap”, would have voted “Yes”.

The problem was that the Prime Minister’s claim was a sophistry: the Voice proposal was never modest, as the Prime Minister readily admitted whenever he wasn’t saying it was modest. Even if judged against a combined demand for treaties, truth-telling, reparations and sovereignty, the Voice wasn’t “modest” because it was the designated path to those follow-up demands anyway.

Nor was it simple, as campaigners such as former Senator Ken Wyatt and Senator Malarndirri McCarthy declared in ubiquitous television advertisements. Voters understood the issue was complex, even if they did not always understand the details, and rightly judged these claims as misleading.

This report appears in the latest Quadrant.
Click here to subscribe

Megan Davis, one of the architects of the Voice, was a more reliable informant. She said it would be “a change to the structure of Australia’s public institutions and would redistribute public power via the Constitution”. It will have a lot of power, she said.

It certainly would have, had it been enshrined as a new chapter in the Constitution and destined to be much adjudicated by the courts. Former High Court judge Robert French called it “a new institution in our representative democracy”.

Now that the Voice proposal has been rejected by a majority of Australians, many good people are pleased, and many other good people are deeply disappointed. Reconciliation between them will not come easily or quickly. But a first step might be for disappointed Voice advocates to accept that many “No” voters share their deep concern for the disadvantaged lives of many Aboriginal people but were alarmed at the additional powers the constitutional change would grant.

An example of the existing power of Aboriginal cultural claims, and its misuse to the detriment of the nation, is the Federal Court’s recent rejection of Woodside Energy’s proposed seismic reflection survey over the Scarborough Gasfield off Western Australia. It is worth detailing for the lessons involved.

The large Scarborough Gasfield, which Woodside discovered in 1979 and now proposes to develop, is located in the Indian Ocean about 370 kilometres west of the coastal town of Karratha and the nearby Burrup Peninsula, where Woodside’s gas-to-LNG processing facilities are located. Scarborough holds over ten trillion cubic feet of natural gas in a domal structure about 1800 metres below the sea floor, and development costs are expected to be about $16.5 billion. Production from the field had been scheduled to commence in 2026, adding to much-needed domestic supplies and generating billions of dollars for Australia from exports to global markets. It is unclear whether the recent Federal Court action will delay that schedule.

The proposed seismic reflection survey was to assist in planning the field development and, in the future, the monitoring of gas production. As required by federal legislation, Woodside submitted an Environmental Plan (EP) for the survey to the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). This was approved and the survey was set to proceed, including the mobilisation of a survey vessel at a cost of several hundred thousand dollars a day.

A last-minute legal challenge to NOPSEMA’s approval was brought to the Federal Court by an Aboriginal woman, Raelene Cooper, with the assistance of the taxpayer-funded Environmental Defenders Office, on the grounds that Woodside had not consulted adequately with her. The court agreed and disallowed NOPSEMA’s approval, necessitating postponement of the survey and preparation of a new EP which, presumably, will only be approved if Ms Cooper feels adequately consulted.

Woodside’s EP ran to 1196 pages, took over five years to prepare, and likely cost several million dollars. A delay to production from Scarborough, should that be a consequence of this activism, could cost Australia hundreds of millions of dollars that might otherwise have provided health and social services, including to Aboriginal communities.

Preparation of the EP required that Woodside consult with any organisation, group or individual who considered they could be affected by the survey or activities that followed from it. For the Scarborough EP, this included many Aboriginal communities and organisations. Even though the seismic survey was hundreds of kilometres offshore, the gas from the field would ultimately be piped to the Burrup Peninsula processing facilities, and Aboriginal groups with legal or cultural ties to Burrup or nearby areas were entitled to consultation about, and if warranted compensation for, any flow-on impacts on their community.

Consulting the relevant Aboriginal groups might seem a relatively straightforward process to many urban Australians, but this is far from the case. Obtaining approvals from Aboriginal communities for exploration and development projects in northern Australia is often a major cost item at the planning stage and an impediment to timely progress. The problem is not simply access and heritage issues, both of which can usually be negotiated, given the company’s agreement regarding compensation and funding demands. Often, the complexity arises from competing claims by different Aboriginal groups, all of whom must be satisfied and whose aspirations are potentially in conflict. The various legislative land-rights dictates of recent decades have made cultural authority over land a matter of personal prestige and potential financial benefit, and there is often a plethora of overlapping and conflicting claims.

This obviously runs contrary to the ubiquitous claim that Aboriginal tribes have lived on the same land for millennia, but this widespread belief owes more to contemporary Aboriginal dogma and white urban romanticism than it does to reality. Tribal people moved extensively in pre-contact times in response to climatic changes (ice ages, for example) and demographic pressures, and since British colonisation there has been extensive serial migration towards the settlements and towns. Some groups retained close ties to the tribal estates of their ancestors but others merged and intermarried and resettled in new country. In this practice, they are no different from any other race, seeking to maximise their quality of life and access to resources. Anthropologists politely describe this adopting a new homeland while insisting on residency there since time immemorial as a new exegesis (re-dreaming the Dreaming, as it were), often aided by a “contra-mnemonic” (bad memory), and “reterritorialising within the living landscape”.

In this instance, the traditional owners of the Burrup Peninsula and its world-famous rock art were the Yaburara tribe. They called the peninsula Murujuga, meaning “hip-bone sticking out”. Unfortunately, the Yaburara were extinct by the early mid-twentieth century, according to the anthropologist Norman Tindale and anecdotal information from local Aborigines. That does not leave the situation simpler, however, because other groups now claim to be the traditional custodians: in this instance, the Ngaluma and Mardudhunera people, whose ancestors occupied land adjacent to Burrup. Indeed, the Ngaluma claim the Yaburara were simply the northern Ngaluma clans, but the very different Ngaluma and Yaburara languages argue against this.

Regardless, these Ngaluma and Mardudhunera groups are represented collectively by the Murujuga Aboriginal Corporation (MAC)—although its membership also includes Yindjibarndi, Wong-Goo-Tt-Oo and Yaburara people. The Yindjibarndi were an inland tribe, some of whom had moved into coastal communities. The Wong-Goo-Tt-Oo are not a tribe but three families who claimed that the last of the Yaburara men bequeathed them traditional custodianship of Burrup in the 1940s. The families lost their own native title application for Burrup but settled for a share of the MAC claim. For their part, the Yaburara insist that reports of their extinction have been greatly exaggerated.

Dealing with the MAC might itself seem relatively simple, but the various member communities also have their own corporations, all of which must be dealt with separately: the Coastal Mardudhunera, the Wirrawandi, the Ngaluma and the Yaburara corporations. Not all of these are necessarily in agreement among themselves or with the MAC, and satisfying one might alienate another. The Wirrawandi Aboriginal Corporation, for example, manages the native title interests of the Mardudhunera and Yaburara people, some of whom also have native title rights over Burrup (where not surrendered for generous compensation) through their membership of the MAC.

Woodside was also required to consult separately with the representative corporations of the Yindjibandi, Yinggarda, Buurabalayji Thalanyji, Robe River Kuruma, Nganhurra Thanardi Garrbu, and Yamatji Malpa communities, all of whom identified themselves as “relevant parties” potentially affected by the seismic survey or subsequent activities. Some of these communities are hundreds of kilometres from Burrup. (Some of these corporate details might prove imprecise, given the complexity of it all, but that’s the point: any specific detail is not important in itself.)

Woodside began consultations in 2018 with the MAC and other corporations, none of whom expressed any major concerns. Ms Cooper was a member of the MAC and party to those consultations until late 2021 when she broke away and formed the rival group Save our Songlines (SOS). She then announced a commitment to not only oppose the seismic survey but to stop any expansion of Woodside’s Burrup processing facilities “from damaging our Songlines, our rock art, our health and our climate”. Our rock art tells our stories, the SOS website claims, it is our bible. Such claims tug at urban intellectual heartstrings, now finely tuned to a hymn of social and ecological paradise in pre-invasion Australia, and are given wide publicity by a sympathetic media.

The problem is that Ms Cooper is not a traditional custodian of Burrup and its rock art. She is a descendant of the Mardudhunera tribe who lived on the coastal plains between the Fortescue River in the south and the Dampier Islands west of Burrup. The Burrup is not her biblical land, except in her contemporary dreaming.

(I toured the rock art last year, guided by a self-proclaimed traditional custodian whose spiel was not encumbered by historical or anthropological facts. Aboriginal man did not come from Africa but from Burrup, he insisted, as did the first language from which all other Aboriginal languages evolved. It was a sort of Australian Latin, he posited. This is not in any way to denigrate the amazing rock art; only the silly claims which are made by those purporting to be knowledgeable traditional custodians of this area.)

Ms Cooper claims that the plants and animals are telling her that the seismic activity and development at Burrup are environmental and cultural problems. The threat to the petroglyphs from the industrial development on Burrup has long been controversial. Certainly, it isn’t ideal to have industry so close to such an important ancient art site and it would not be approved today, but they have existed side by side for nearly fifty years. Numerous studies over those years, including by the CSIRO, have not observed any impact of industrial emissions on the rock art. Submarine artwork, drowned by rising seas after the ice age ended about 18,000 years ago, and discovered by Woodside-funded archaeological surveys in 2020, is now carefully avoided in any new developments, such as pipelines.

The impact of the seismic surveying on whales is a major concern for Ms Cooper, who says the whales carry the Aboriginal songlines. No explanation has been given of how the whales acquired the songlines or how they communicate with the traditional custodians. This fantasy clearly owes more to romantic New Age ecology than it does to traditional Aboriginal beliefs, as does her claim that Rosemary Island offshore from Burrup is especially important because all the turtles in the world come there to breed. These may be heartfelt convictions, but they are falsehoods nonetheless.

The danger from the Woodside seismic survey, according to Ms Cooper, comes from the use of airguns. These are metal cylinders which release a compressed air bubble into the water to generate low frequency sonic waves that function as a sort of subsurface sonar and reveal the structure in the earth down to a depth of about ten kilometres. Ms Cooper insists these “blasts” are dangerous for all marine life, especially for whales.

The weakness in her claim is that this entire offshore region, known geologically as the Northern Carnarvon Basin, has been extensively surveyed for decades without any signs of the damage Ms Cooper fears. In the offshore region between Exmouth and Karratha, over 1.3 million kilometres of seismic reflection profiles have been recorded since the 1960s, as well as nearly 1.6 million square kilometres of 3D surveys. All seismic survey vessels have whale watchers on board (two, so one is always on deck) and the survey stops if a whale or dolphin is sighted.

Assuming an average of twenty-five metres between “shots”, those supposedly fatal airguns have been fired about 30 million times during these surveys. Over 1000 wells have been drilled and numerous oil and gas fields are actively producing there. Yet the world-famous reefs and islands and the endless sandy beaches are still pristine, still a mecca for tourists. The whales are still migrating through, in ever-increasing numbers.

It bears noting that much of the now extensive knowledge of whale migration in this region began with surveys by the Jenners, founders of the Perth-based Centre for Whale Research, who have been funded for decades by Woodside to the tune of about $30 million. Specifically, the migrating blue pygmy whales, now falsely said to be threatened by the Scarborough survey, were discovered during Woodside-funded research. Contrary to Ms Cooper’s claims, they do not migrate through the area of the Scarborough survey but much closer to shore, predominantly along the continental edge where upwelling waters are a source of nutrients.

Because Woodside would not—could not—agree to her demands, Ms Cooper claimed that they hadn’t consulted her enough! For their part, Woodside committed to continued consultation with her. But the court ruled that Woodside’s commitment to further consultations meant their planning could not be said to be completed, and NOPSEMA should not have approved an incomplete plan. The judge quoted former US Secretary of Defense Donald Rumsfeld in support of his ruling, declaring that unfinished consultations meant “unknown unknowns” might yet emerge.

Effectively vetoing ongoing consultations is clearly counter to good management practice and the regulatory requirement that the environmental management plans include a “Management of Change” section to allow the incorporation of new information or changing circumstances. That, after all, offers the best protection for the environment.

The Scarborough case provided yet another warning of the threat to development of Australia’s resources and the sustaining of our national wealth from activists of various persuasions, including the judiciary. This seemed timely in the weeks before the Voice referendum. A successful “Yes” vote” would have seen Aboriginal people and communities feeling more empowered, and negotiations regarding access to land would likely have become more complex and costly. The power available to activists who dress their anti-development or environmental campaigns in traditional Aboriginal garb would certainly have been enhanced. As the Scarborough case shows, it only requires one Aboriginal dissenting voice, be it instigator or recruit, to cause major delays and substantial costs. But, in fairness, those conflicts have been with us for decades and were worsening regardless.

Cultural claims over offshore areas are an emerging front line, for example, targeting lands submerged by rising seas at the end of the ice age 18,000 years ago, but also the ocean itself. Assurances that native title would not apply over offshore areas have gone the way of assurances over leasehold land. Traditional custodianship of offshore areas, now referred to as “Sea Country”, was effectively recognised by the Federal Court in 2022 in a case remarkably similar to Scarborough.

Santos’s Environmental Plan for development drilling on the Barossa Gasfield north of Darwin had been prepared after extensive consultation and agreement with the Tiwi Land Council, the statutory representative body for the Tiwi Islanders, and the Northern Land Council, which was the Native Title representative body for the Tiwi Islands. Notwithstanding this, NOPSEMA’s approval of the EP was successfully challenged by Tiwi man Dennis Tipakalippa on the grounds that Santos had not consulted with him personally, as was his right because of his “continuous spiritual connection to his Sea Country”. In disallowing NOPSEMA’s approval, the Federal Court noted that the evidence before it included a song-and-dance routine.

None of this is to suggest that the “No” vote will solve these problems which are, in various guises, conflict between Aboriginal rights and the rights of the broader Australian community. All indications are that this conflict will continue to worsen, at least in the short to medium term. Indeed, it may well be that Scarborough’s fair warning was not simply about the consequences of a “Yes” vote but more generally about the racial conflict and social incohesion that lies ahead anyway.

The conflict is ostensibly over access to land and its resources, as human conflict so often is, but in Australia now it is broader and deeper than that, having at its core the right to define the nation’s sense of itself. Many Australians resent being welcomed to their homeland at every football match or function or Qantas flight. They resent having their children groomed in school on a false idyllic description of traditional Aboriginal culture, touting a moral and spiritual superiority to the enlightened laws and freedoms inherited from British traditional culture. They resent being derided for their views by many of the political, cultural and intellectual elite and their fellow travellers in the media. Perhaps somewhere in the “No” vote was the beginnings of the resistance against this woke flight from reason so pervasive in Western society.

National unity invariably reflects an agreed national mythology and Australia no longer has that, torn as it is between those who find pride in a founding mythology of settlers and Anzacs and those who wail at a mythology of conquest and massacre and the loss of Eden. These mythologies are opposed fundamentally, and it is very difficult to see a path to reconciliation between them.

A “Yes” vote was never going to resolve that conflict: the referendum was divisive enough in itself, but a Voice enshrined in the Constitution would have guaranteed everlasting discord. Moreover, despite the good intentions, it was never going to solve Aboriginal disadvantage, being focused on funding the future with financial reparations for the past and missing the need for personal responsibility and endeavour in the present.

Perhaps, as passions settle, the “No” vote might allow Australians to agree on their common goal of ensuring better use of the vast resources generously provided annually by Australian taxpayers to the broader Aboriginal community. A useful starting point would be an audit of the finances of the thousands of departments, facilities, corporations, companies, communities and individuals to whom that money is now given.

The hope is that many find pause to agree on a basic equality among us, from the first arrivals to the last, and hold to that as a valuable and sustaining aspect of our society.

Peter Purcell is a geologist, with experience in Australia, Oceania, South-East Asia and East Africa. He has written extensively on geological, environmental and social issues. He contributed the articles “The Corrupting Myths of Indigenous Origins” in the July-August issue and “The Ruse of Tradition” in the special August online issue. An earlier version of this article appeared on Quadrant Online.