The Scarborough Gasfield’s Fair Warning

The ‘modest’ promise of the Voice, according to our Prime Minister, is the delivery to Canberra of better ways to end Indigenous disadvantage. Most Australians support ‘closing the gap’ and many will be led by their goodwill to vote ‘Yes’ for the Voice. Implicit in this process is willing agreement between the Aboriginal communities on whose behalf the Voice is speaking: different tribal, clan and family groups will need to set aside their individual preferences and act together and honestly for the collective good. 

Those believers in the prevailing paradisial myths about pre-contact Aboriginal tribes living in harmony with each other and nature will have no cause to doubt this. Others, more aware of the traditional pattern of inter-tribal and inter-clan conflict, and its contemporary expression in street fighting and community violence, will have a different perspective.  

The problem is that the Prime Minister’s claim is a sophistry. The Voice proposal might seem modest if judged against a combined demand for treaties, truth-telling, reparations, and sovereignty – but it isn’t really, because the Voice is the path to those follow-up demands anyway.

Megan Davis, one of the architects of the Voice, is a more reliable informant. She says it is ‘‘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 says.

It certainly will, being enshrined as a new chapter in the Constitution and destined to be much considered by the courts. Former High Court judge Robert French has called it ‘’a new institution in our representative democracy’’.

Much has been said against granting such power to the Aboriginal community, approximately three per cent of the Australian population. The Federal Court’s recent rejection of Woodside Energy’s proposed seismic reflection survey over the Scarborough gasfield offshore Western Australia offers yet another warning.  

Woodside is planning to develop the large Scarborough Gasfield, located about 370km out to sea from the WA coastal town of Karratha and the nearby Burrup Peninsula, where their gas-to-LNG processing facilities are located. Scarborough holds over ten trillion cubic feet of natural gas, with the development costs expected to be about A$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 Federal Court action will delay that schedule.

The proposed seismic reflection survey will assist in the development planning and, in the future, allow monitoring of gas production. As required by Federal legislation, Woodside submitted an Environmental Plan (EP) for the survey to NOPSEMA, the National Offshore Petroleum Safety and Environmental Management Authority. This was approved and the survey was set to proceed, including the mobilization 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 (pictured atop this page), with the assistance of taxpayer-funded legal organisation Environment Defenders, on the grounds that Woodside had not consulted adequately with her. The court agreed with her 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 herself adequately consulted. 

Woodside’s EP runs to over 400 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 organizations. 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.

While consulting these groups might seem a relatively straight-forward process to many urban Australians, 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 agreement regarding compensation and funding.

Often the complexity arises from competing claims by different Aboriginal groups, all of which 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, as a result, a plethora of overlapping and conflicting claims.

In this instance, the traditional owners of the Burrup Peninsula and its world-famous rock art were the Yaburara tribe, but they were extinct by the early mid-twentieth century, according to legendary anthropologist Norman Tindale and anecdotal information from local Aboriginals.  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. 

These two 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 survivors of the Yaburara tribe bequeathed them traditional custodianship of Burrup in the 1940s. The families lost their native title application for Burrup but settled for a share of the MAC claim. For their part, the Yaburara insist that reports of the tribe’s extinction have been greatly exaggerated.

Dealing with the MAC might itself seem relatively simple, but it turns out that 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 ‘affected parties’. 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 specific concerns. Ms Cooper was a member of 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”.

The problem here 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 southwest of Burrup, extending down to the Fortescue River. Burrup is not her biblical land, except in her contemporary dreaming.

Ms Cooper claims the plants and animals are telling her that the seismic activity, which produced the geological profile above, and development at Burrup are a problem. The whales are especially important, she says, because they carry the Aboriginal songlines. This clearly owes more to romantic New Age ecology than it does to Aboriginal belief. So, too, does her claim that Rosemary Island. offshore from Burrup. is especially important because “all the turtles in the world” go there to breed.

(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.) 

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

The problem with her claim is that this entire offshore region (above), 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.

Assuming an average of 25 metres between ‘shots’, those supposedly fatal airguns have been fired about 30 million times in this area. Over 1000 wells have been drilled and numerous oil and gas fields are 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 and in ever increasing numbers.     

It would appear that because Woodside would not – could not – agree to her demands, Ms Cooper claimed, and the court agreed, that they hadn’t consulted her enough! The court also ruled that because Woodside had committed to further consultations with Ms Cooper and others, their planning could not be said to be completed and, correspondingly, NOPSEMA was not entitled to approve an incomplete plan.

This is obviously counter to good management practice and regulatory requirements 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 offers fair warning about that lies ahead if the Voice referendum is successful.

Firstly, dealing with Aboriginal communities will likely become more complex, costly, and time-consuming than it already is. The Voice will empower the Aboriginal community generally to be more assertive and demanding. A good thing, many Yes supporters might say, but it will not be without conflicts both within the Aboriginal community and with the broader Australian society.

Aboriginal communities, corporations, clans, families and individuals all have their own agendas and, no less than other Australians, will seek their own best advantage. One voice doesn’t speak for all, and one Voice won’t be able speak for all. 

An elected or appointed member of the Voice will have tribal and family links. These will determine their allegiances, as they have always determined allegiances in all cultures. Those communities without a direct representative will be resentful and seek advantage through other channels. As the Scarborough case shows, it only requires one dissenting voice to cause major delays and substantial costs.

If aspirations are not satisfied, the dissatisfied party will appeal to the courts. A Voice enshrined in the Constitution will encourage and facilitate that. So will taxpayer-funded legal groups like the Environment Defenders Office which supported Ms Cooper. It is likely that many claims will succeed, given the progressive views seen in recent years from much of the judiciary, including the High Court.

If the petitioner has the ear of the Voice, then the case will be pitched very hard and very early to government at the highest levels. In the Scarborough case, the Voice would have been advising the environmental authority NOPSEMA at least from 2021 not to approve Woodside’s EP. Any bureaucrat brave enough to ignore such advice would have been quickly escorted to the Federal Court.

Nor will this be limited to remote regions: increased claims regarding heritage sites can also be expected in rural and urban areas. Successful claiming of ‘sacred sites’ or rights to conduct ‘traditional ceremonies’ will be increasingly important as a validation of traditional authority for urban residents of mixed Aboriginal/European heritage. Conflict between families over the right to conduct smoking and welcome ceremonies has occurred recently in Perth.

Future cases will follow Ms Cooper in dressing broader anti-development or environmental causes in traditional garb.  Climate campaigners can readily argue, for example, that rising temperatures from fossil fuels are denying traditional owners the right to enjoy their ‘sovereign’ land and sea estates.

It bears remembering that assurances after Mabo that native title applied only to land areas have gone the way of assurances that native title would not apply to leasehold land. The High Court took care of that. Offshore areas are now referred to as Sea Country.

Traditional custodianship of Sea Country was recognized by the Federal Court in 2022 in a case that was remarkably similar to the Scarborough case.  In preparation for drilling on the Barossa Gasfield north of Darwin, Santos consulted extensively 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.

NOPSEMA’s approval of Santos’s Barossa Environmental Plan was challenged by Tiwi man Dennis Tipakalippa on the grounds that Santos had not consulted with him personally and acknowledged 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 by Tiwi Islanders.

But perhaps Scarborough’s fair warning is not simply about the consequences of a ‘Yes’ vote’ and is more about the racial conflict and social incohesion that lies ahead anyway, at least in the short term.

National unity invariably reflects an agreed national mythology and Australia no longer has that, torn as it is between those who take 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 while they compete.

A ‘Yes’ vote will not resolve the conflict and is unlikely to solve Aboriginal disadvantage, given its focus on the funding a future with reparations for the past, and missing the need for personal responsibility and endeavour in the present.

An optimist might hope that a ‘No’ vote will allow Australians to agree on a basic equality among us, from the first arrivals to the last, and to determinedly commit to better use of the vast resources generously given annually by Australians to help disadvantaged Aboriginals and other people begin to rebuild their lives.