Dreaming, Scheming and the Barossa Gasfield

Environmental activist groups funded by the Federal government  — the Environmental Defenders Office (EDO) — for example or by like-minded philanthropists (Sunrise Project) are exploiting Aboriginal heritage issues in their campaigns to stop all oil and gas projects in Australia. The Scarborough and Barossa gasfields, offshore WA and NT respectively, are the current battlegrounds. The strategy is to mount legal challenges to government approval processes, often just prior to the commencement of work, thereby causing maximum disruption and financial loss to the company. The challenge is invariably based on claims that the company did not consult adequately with the Aboriginal clients whose ‘sacred sites’ are under threat of destruction, with the risk of physical and spiritual harm, even death, to the community.  Such claims attract considerable support from the public and the judiciary.

The weaponising of sacred sites to stop exploration and development projects in Australia is not a new phenomenon. The Hindmarsh Island conflict in South Australia and the Noonkanbah confrontation in northern WA are well known examples dating from nearly 50 years ago. At Hindmarsh, the site itself was a fabrication; at Noonkanbah, the P Hill site was part of mythology of earlier tribal occupants of the area but the claim of a ‘sacred sphere of influence’ around it by the contemporary Aboriginal occupants was part of an elaborate ruse to prevent oil exploration drilling.

The current assault on the Barossa gasfield is an escalation of the battle, as regards both weaponry and target. Barossa is a giant gasfield and its development, coming at a time of worsening domestic gas supply problems and rising energy costs, is of national importance. It will also supply energy to Asian markets and contribute billions to the Australian economy.  The cost of the delay could amount to hundreds of millions of dollars; the cost of the project’s cancellation would be billions. The opposition’s weaponry is not simply a ‘sacred’ feature onshore but the cultural heritage of the ocean itself, the so-called “Sea Country”, and features on a seafloor that has been submerged for thousands of years but are recalled by memories drawn from ‘deep time’. It is a contest that deserves close scrutiny by Australians because it affects not only the national economy but also the national identity.

The Barossa gasfield was discovered in 2005 about 150 kilometres north of the Tiwi Islands, near Darwin, by US company ConocoPhillips and its partners, Australian company Santos and Korean conglomerate SK E&S. Barossa contains about five trillion cubic feet of natural gas and 15 million barrels of condensate. The 16 per cent of carbon dioxide in the natural gas deposit has led to special condemnation by environmental and climate activist groups who are not deterred by the fact that the CO2 will be diverted to the depleted Bayu Undan Gasfield to the southwest and sequestered there in deep secure reservoirs. The natural gas will be delivered to the Darwin liquified natural gas (LNG) processing facility by a 260km pipeline that passes near the Tiwi Islands and joins the existing Bayu Undan Gasfield-Darwin pipeline. Santos became project operator in October 2019 after purchasing ConocoPhillips’ interests and now holds a 50 per cent interest, having sold 12.5 per cent to JERA, Japan’s largest power generation company in 2022.

Government approvals for oilfield developments in Australia require acceptance by the National Offshore Petroleum Safety and Environmental Management (NOPSEMA) of the company’s Environmental Plan (EP) for the project. Towards that end, ConocoPhillips began consultations with the Tiwi Land Council (TLC), which represents the eight clans living on Bathurst and Melville islands (the Tiwi Islands), and with the Northern Land Council, the Native Title representative body for the Tiwi Islands, as well as all other stakeholders in the region.  During the consultations relating to the Barossa pipeline, which commenced in August 2018, the TLC expressed concerns about the potential impact on marine life and the risks of discharges or spills. After these concerns were addressed by ConocoPhillips, the TLC advised them on March 18, 2019, that there were no further concerns. The pipeline EP was submitted in August 2019 and accepted by NOPSEMA in March 2020.  The development-drilling EP was lodged in October 2021 and, after several revisions, accepted by NOPSEMA in March 2022.

The approval of the drilling EP stirred the opposition into action.  In June 2022, Tiwi Island lawman Dennis Tipakalippa, despite having been a party to the consultations, challenged NOPSEMA’s approval in the Federal Court, arguing that the consultations had not adequately included his Munupi clan. He cited concerns about the potential threat to Tiwi food sources and interference with his ‘continuous spiritual connection to Sea Country that had existed for millennia’. Tipakalippa was represented by the legal firm Environment Defenders Office (EDO), whose funding with taxpayer’s money had recently been re-instated by the newly elected Albanese government.  

In August 2022, the Federal Court ruled in favour of Tipakalippa and ordered that all activity cease and a new EP be prepared. Santos/ConocoPhillips had consulted with all Tiwi Island representative bodies, the Court said, but they had not consulted with each Tiwi Island person.  The appeal against this ruling was unsuccessful and Santos has initiated a new round of consultations with ‘traditional owners’ and will prepare and submit a new EP.

The opposition to Barossa also took on an international approach, with court action in South Korea seeking to prevent the Export Bank of Korea and the Korean Trade Insurance Corporation from funding loans for the project. This action was initiated by Jubilee Australia, in partnership with Solutions for Our Climate (South Korea) and the Japan Center for a Sustainable Environment and Society.  This action was fronted by Jikilaruwu clan leaders Daniel Munkara and Francisco Babui, who claim their people weren’t properly consulted on the project. The Koreans initially expressed serious reservations about the funding because of the high carbon dioxide content but these concerns have reportedly been alleviated by the planned sequestration.

The latest opposition initiative was launched In December 2022. The EDO wrote to NOPSEMA on behalf of five Tiwi Islanders protesting the lack of adequate consultation about the pipeline which would ‘injure or desecrate significant areas of submerged Tiwi cultural heritage’.  Specific references were made to a ‘sacred rock’ called Rocky Point, multiple burial sites along the west coast of the islands, and potential other sites and songlines in deeper water, including those related to the mythic Rainbow Serpent, Ampitji.

No doubt sensitised by the Federal Court’s overturning the approval of the Barossa development drilling EP, NOPSEMA immediately issued General Direction 1898, requiring that Santos ‘undertake an assessment to identify any underwater cultural heritage places along the Barossa pipeline route’.  Any such features are protected in Australia by the Underwater Cultural Heritage Act 2018, which is managed by the Commonwealth Department of Climate Change, Energy, the Environment and Water. This legislation is aligned with the UNESCO Convention on the Protection of the Underwater Cultural Heritage, to which Australia is a signaturee.

The claims of traditional underwater heritage sites are not concerned solely with the shallow seas surrounding the Tiwi Islands but with a vast area of ocean and seafloor stretching far to the north. During the ’ice-age’ known as the Last Glacial Maximum (LGM), about 18-20,000 years ago, when sea level was about 120 m lower, this region formed part of the Australian mainland, stretching almost to Timor. This area was almost certainly occupied by ancestral Aboriginal tribes and potential for underwater archaeological heritage follows from the possibility that artefacts from that early occupation might be preserved on the now submerged landscape. Tiwi claims of ‘ownership’ of archaeological and cultural sites assumes those people, driven south by rising sea levels, became the ancestors of the Tiwi of today and that the modern seafloor is essentially the drowned land surface from LGM-time. Neither assumption is well founded, as is discussed in detail later. 

Santos and EDO both retained experts to investigate features of anthropological or archaeological cultural importance in the area traversed by the pipeline. The EDO retained Mick O’Leary from the University of Western Australia and anthropologist Gareth Lewis of GL Anthropology, Darwin, both also experienced professionals.  Dr O’Leary has a PhD in Marine Science and is Associate Professor in Climate Geoscience at the University of Western Australia, with research interests in submerged landscape archaeology and Aboriginal underwater cultural heritage. Gareth Lewis is a consultant anthropologist with extensive experience working on Aboriginal land claims and site mapping and whose current clients include the EDO, the Northern Land Council and the Aboriginal Areas Protection Authority.

Santos retained Dr Brendan Corrigan, of ABMC Consulting Pty Ltd, Wessex Archaeology Ltd to conduct the main investigations. Dr Corrigan holds degrees in both anthropology and archaeology and has worked for decades with Aboriginal communities in northern Australia. Wessex Archaeology Ltd is the UK’s leading provider of archaeological and heritage services.   Its Australian subcontractor, Extent Heritage specialises in Aboriginal and Torres Strait Islander cultural heritage management, including Sea Country heritage. Their extensive surveys and analyses led them to conclude that the pipeline posed no threat to cultural heritage sites, contemporary or archaeological. On that basis, Santos had no cause to revise the EP and began to mobilise equipment and personnel to Darwin for the pipelaying program.     

When the EDO and their Tiwi clients learnt of this in mid-October, EDO submitted an urgent application on behalf of six Tiwi elders to Minister Tanya Plibersek seeking a declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act to prevent work in the area.  Two week later, with the pipe-laying vessel enroute to the Barossa site, EDO applied to the Federal Court on behalf of traditional custodian Simon Munkara for an injunction to stop all work on the pipeline.  Mr Munkara is the trustee for the Jikilaruwu clan and their representative on the Tiwi Land Council. Although he had been party to the original consultations with the companies, without raising any objections at that time, he now claimed not to have been properly consulted. The EDO argued at the hearing before Justice Charlesworth on November 2 that Santos’s ‘underwater pipeline would damage Mr Munkara’s Sea Country, dreaming tracks, songlines and areas of cultural significance’.  Significant new submarine cultural information had been revealed by their investigations, they argued, and Santos must be ordered to submit a new EP which properly assesses the pipeline’s impact on the newly discovered cultural heritage sites. The impact of this, if granted, would be to delay the Barossa development for a year or more and incur costs in the tens of millions.

Justice Charlesworth noted the opposing views expressed by Santos and accepted that her decision would involve financial loss by them but said she had to balance this against the ‘irreparable damage’ Mr Munkara could suffer to his Sea Country and cultural heritage. Accordingly, the Santos vessel was ordered to return to Darwin and a temporary injunction was issued preventing any work by Santos until a further hearing on November 13.  At that hearing, the injunction was extended until a case management hearing on November 15, at which time the injunction against pipe-laying was lifted for the northern area near the Barossa gasfield itself but reinstated for the southern section nearer the Tiwi Islands. The full case hearing before Justice Charlesworth commenced on December 4 and continues at the time of writing. The decision is to be handed down on January 12, 2024. At the November 13 hearing, Mr Munkara was joined in the application by two other Tiwi islanders, Marie Tipuamantumirri (Malawu clan) and Carol Puruntatameri (Munupi clan), both of whom expressed ‘deep concerns about the pipeline’s impact on their Sea Country’.

The dispute clearly turns on the claims by a small group of Tiwi Islanders that there are substantial sites of archaeological and cultural heritage in the waters surrounding the Tiwi Islands and specifically along the proposed pipeline route. The experts’ reports, being evidence submitted to the Federal Court, are in the public domain and provide an opportunity to examine these claims. The material is primarily anthropological and geological in nature, and quite detailed and complex in places, but is readily understandable by the layman and clearly reveals major inconsistencies.  

The EDO’s anthropological consultant Gareth Lewis was unequivocal in his conclusion that the pipeline would incommensurably harm the cultural heritage values of EDO’s Tiwi clients. Specifically he concluded that the pipeline

…will damage sea country… cause spiritual injury and damage to dreaming tracks, songlines and areas of cultural significance… physically as well as spiritually alienate or disconnect areas (of sea and land) from relevant Tiwi people … interrupt relevant Tiwi peoples’ ability to fulfil their spiritual and social responsibilities to look after their estates and associated dreamings and songlines and their ability to perform related ceremonies and rituals… interfering with the cultural education of their children… and will cause significant spiritual and emotional distress.. internalised by the Tiwi Aboriginal community as stress, anxiety, fear, anger and powerlessness.

This definitive statement would seem to provide clear evidence of the significant life-sustaining spiritual and cultural importance for the Tiwi claimants of the Sea Country and submarine landscape along the pipeline route. There is no evidence to question that it is an accurate assessment of the views, heartfelt as they may be, of the Munkara family and other EDO clients interviewed by Lewis. It is important to note, however, that these are not the views of the vast majority of Tiwi people.

Interviews of some 170 Tiwi islanders by Dr Corrigan show a much wider range of views which, in some cases, are in total disagreement with Lewis’s claims. Those interviewed included both men and women, senior and less senior, of all the Tiwi clans.  Certainly, some felt that the pipeline construction could threaten them, but these concerns were mainly centred on supernatural matters related to angering the spirits of ancestors and supernatural beings, especially Ampitji, the Rainbow Serpent.

There was general concern about the well-being of the islands and surrounding seas, including the marine life such as turtles and dugongs, but also the corals and sea grasses. The most widely held opposition to the pipeline was based on potential environmental harm to the lands and waters in the event of an oil spill and there was also refence to the impact on global warming and climate change.  But there was near total agreement that ‘there are no specific underwater cultural heritage places along the pipeline route’. No physical sites or sacred sites were identified along the path of the pipeline by any Tiwi Islander.

A similar — and arguably more profound — disconnect is revealed by a comparison of the archaeological reports by Dr O’Leary for EDO with those of the Santos consultants.  Dr O’Leary’s investigation had three main aspects: the detailing of Tiwi oral traditions involving narratives of both ancestral and Dreamtime activities, the locating on a bathymetric map of the places mentioned in these narratives, using landscape and paleoenvironmental reconstructions, and determining the proximity of these places to the pipeline.  Many of the features documented in his investigations were revealed to him as ‘deep-time’ memories of the now submerged landscape; that is, they are memories dating from thousands of years ago. While often greeted with some scepticism, such ancient memories of floods and rising seas are common in many cultures, including the Judaeo-Christian and have been recorded all around Australia.

Deep-time memories relayed to O’Leary included claims that the landscape at LGM-time had been like Arnhem Land, with cliffs and caves and waterfalls, as well as a large freshwater lake and big rivers, all now under the sea. This lake, located west of the Tiwi Islands was identified as the resting place of Ampitji, described in this instance as a ‘mother figure’.

Again, consultations with the broader community reveal very different views about the Ampitji’s nature, activities and domicile.  Many senior people claimed to have seen Ampitji appear as rainstorms or waterspouts, and to have calmed them by calling out that all was well. Some saw Ampitji as a single being; others, a plurality. Commonly he was male but sometimes she was female.  Some said Ampitji normally lived in a lake in the south of Bathurst Island; some, that he lived in the northwest coast. Some said that he routinely traverses all of the sea in the vicinity of the islands; others, that he did not go into the sea at all and lived only in freshwater areas. Some people felt that Ampitji might be disturbed by the pipe-laying and cause harm to the Tiwi but also held that having relevant Tiwi ‘introduce the pipeline and its work to the rainbow serpent’ would ameliorate any risk. None of the people referred to Ampitji as a mother figure living west of Bathurst Island in a submarine lake, as claimed by the EDO’s informants.

These informants were also of the view that the mythic Crocodile Man Jirakupai had travelled west towards this lake and that this mythic path would be crossed by the Santos pipeline, causing unpredictable spiritual damage to the Tiwi. In contrast, none of the other Twi people described this mythic westward journey track. The many Tiwi people interviewed by Dr Corrigan described wide ranging travels by Jirakupai, with the more popular view being that he only swam in the nearshore waters around the southwestern end of the island where he had been killed in the Dreamtime. This does not preclude a traditional belief among some Tiwi that Crocodile Man also travelled westward, but it does make clear that such a journey was but one of many and not of great mythic importance to all Tiwi. 

A small number of Tiwi also referred of Imunka, which was variously described as ‘soul’ or ‘life-force’, which they claimed was present in the sea in a manner that would be entirely inconsistent with the pipeline construction. This was widely rejected by the majority of Tiwi, including highly knowledgeable elders, both male and female, of all clans.

Additionally, O’Leary’s bathymetric analysis of the seafloor identified a series of elongate moundforms which he interpreted as burial grounds of Tiwi ancestors. This would appear to be a significant claim, but is without substance, as is detailed below.

The Wessex archaeological investigation was focussed along the pipeline route on submerged landforms which might have Aboriginal cultural heritage value.   They developed a predictive model of archaeological sensitivity for various ‘landforms’ on the seafloor based on their similarity to landforms having associated Aboriginal sites in a large onshore NT study areal. For example, if archaeological and contemporary cultural sites are documented along rivers in the study area, then paleo-river systems preserved on the seafloor would be designated as potential archaeological sites.

Bathymetric data from Australian government sources and industry surveys were used to construct a map of the seafloor and high-resolution geophysical data, including seismic boomer profiles and multi-beam and side-scan sonar imagery, were used to examine the shallow layers at and below the seafloor.   Comparing the seafloor features with the ‘model’ area, Wessex identified 163 features of possible archaeological interest, with 60 classified as having ‘probable’ potential and 103 classified as ‘possible’ potential. It is important to note that these were not archaeological sites per se; merely locations which resembles physiographically a location associated with an archaeological site in the predictive model.

Wessex also examined lithological samples and geophysical measurements from shallow coreholes drilled along the pipeline route, looking primarily for peat beds or estuarine silt layers, both known from studies elsewhere to sometimes contain archaeological material. No such layers were identified.  On the basis of these studies Wessex concluded that there was no basis for establishing an Archaeological Exclusion Zone anywhere along or near the proposed pipeline route.

Santos also subcontracted world-renowned American geologist and stratigrapher Dr Henry Posamentier to examine the structure and stratigraphy of the modern sea floor and determine its deposition history and relationship to the seafloor at LGM time. Dr Posamentier pioneered the modern approach to sequence stratigraphy, blending the disciplines of sedimentology, stratigraphy, and depositional systems analysis, regarding which he has authored hundreds of scientific papers. Posamentier’s findings totally discredited the claims of cultural heritage sites on the ancient now submerged LGM landscape. There is no submerged LGM landscape: it was eroded away millennia ago and then buried under redeposited sediments, river outwash and carbonate banks.

After sea level reached its low point during the LGM, it then began to rise and continued to do so for the next 10,000 years or so. During that time, the shoreline advanced southward at rates estimated to be up to 18 m/year. By analogy to other well-studied ancient and modern coastal environments, storm-related and shoreface waves and tidal currents along the ever-advancing shoreline caused substantial erosion, estimated at five to ten metres of the old LGM land surface.  Subsequent redeposition of the eroded sediments and deposition of river-sourced sediments buried the eroded surface and extensive carbonate banks of corals and sponges formed over vast areas, further burying any remnants of the old landscape. Clearly, any stone tools, wooden objects or other artefacts left by early human would have been eroded off the original land surface and dumped elsewhere and buried under subsequent deposits. Given the scale of erosion and redeposition, it is highly unlikely any human artifacts have remained in situ on the original surface, which is now buried anyway.

Dr Posamentier’s analysis of the stratigraphy of the seafloor and underlying shallow layers involved detailed interpretation of the extensive geophysical data available, including the high-resolution seismic profiles and multi-beam and side-scan sonar imagery.  Based on his more extensive experience with marine sedimentation, he recognised that the majority of features on the seafloor being interpreted by others as buried subaerial landforms were actually submarine depositional features. Long sinuous channels on the seafloor were not relict ancient river valleys but modern surge channels cutting through the carbonate banks. Specifically, the prominent bathymetric depression interpreted by O’Leary as a buried lake system from the LGM time – home of the Ampitji – was shown to be a complex tidal channel.  It might have originated as a river system during the LGM exposure of this area, but the recognition within it on sonar data of mounded sediments known as tidal ‘bars’ demonstrates clearly that its modern form has been shaped by tidal currents.

Dr Posamentier’s investigation also revealed very clear sonar and bathymetric images of prominent sand waves formed by tidal currents along the pipeline route. These dune-shaped features were mistakenly interpreted as burial ‘mounds’ by Dr O’Leary.

The evidence from these various studies is before the Federal Court at the time of writing, with Justice Charlesworth’s decision due, as noted above, by January 12. In her November orders prohibiting Santos from work on the pipeline, Justice Charlesworth referred to the need to balance the multi-million loss by Santos against ‘irreparable’ damage to Mr Munkara’s cultural heritage. The anthropological and archaeological evidence now available surely calls for a different balance and perhaps not just in this case but with regard to Aboriginal cultural sites in general.

A pervasive romanticism about Aboriginal culture is now widespread in Australia and underwrites an acceptance, even a belief, by many in the broader community of the sacredness of all aspects of ‘traditional’ Aboriginal culture and specifically of ‘sacred sites’.  Witness a recent media comment that equated Alligator Man’s songline with the Vatican in Rome and posited that we wouldn’t run a gas pipeline in the Vatican and shouldn’t do so across Jirakupai’s travel path.  This is typical of the reverence with which many modern Australians view Aboriginal sites. In reality, of course, the Vatican has all manner of gas, water and electrical lines running under and through it, but the point is the absurdity of the comparison.

The origins of this are complex. Suffice to say here that the adoration of tribal society unblemished by civilisation is as old as urban man but it swept beyond the intellectual and cultural elite into the general public in Australia in the late 20^th Century. Pre-colonial Australia has been re-imagined with Aboriginal ‘nations’ living peacefully in harmony with nature and each other, until the British invasion.

Many other Australians hold a different view, and prefer to champion the enlightened laws and freedoms inherited from traditional British culture.  Their faith is vested to varying degrees in a Christian God and they are doubtful, to say the least, of the sanctity of hills fashioned by mythic dogs and rivers carved by a rainbow serpent. Not surprisingly, there is a deepening social conflict between these groups: the one with a proud founding mythology of settlers and Anzacs and the other with a mythology of conquest and massacre and the loss of Eden. ‘Sacred sites’ are a regular battleground in this conflict and it is arguable that the current approach to Aboriginal heritage is increasingly a source of animosity, as evident most recently with the public reaction to, and the government’s withdrawal of, the new Western Australian heritage legislation.

When Justice Woodward advised the Commonwealth Government in 1974 that sacred sites should be protected by law, he was referring only to ‘sites of such importance in the clan’s cult life that only the initiated men were allowed to visit there’. Within a few years, however, Aboriginal heritage laws began to use ‘sacred site’ more broadly for any place of cultural significance to Aboriginals and the term is now used ubiquitously in that sense. Any landform remembered in the fragments of a creation myth, any mound of flint chips from long ago spear points or shells from an ancient feast, any cave that has signs of early occupation, any gathering or birthing place is now a ‘sacred site’. Some of these sites might have considerable archaeological importance but they are not sacred sensu stricto.

Were the term used as originally intended, with ‘sacred sites’ being places of importance in the traditional religious life of the claimant Aboriginal community, there would likely be less controversy. There might still be conflict, with other Australians seeking to encroach on that site for one reason or another, but the basis for protecting the site would be clearer and likely more widely understood and accepted by the public. In the aftermath of the October referendum, with its majority voice calling for equal pride of place for all peoples, it might be timely to begin to look more rationally at the role of Aboriginal culture within the national theatre. One aspect of that would be the developing of a better understanding of significance of Aboriginal cultural heritage sites and, more broadly, a re-evaluation of the concept of sacredness in that regard.

In the near term, we might look to the courts for more rationality than romanticism in their adjudicating of ‘sacred site’ claims. In the Barossa case, for instance, a small group of Tiwi Islanders claims that the pipeline will cause physical and spiritual harm to their ancient sites and themselves personally. The claims might be heartfelt beliefs, but they are flat-out denied by the senior knowledge holders of the Tiwi community. To halt a nationally important project such as Barossa on the basis of personal beliefs that are counter to the tribal view asks serious questions of the broader society about what they are prepared to accept.  Those personal claims are based in part on ‘deep-time’ memories from thousands of years ago of a landscape that resembled Arnhem Land of today – a comparison that suggests a modern imagining rather than ancient knowledge passed from generation to generation across millennia.  It also bears noting much of the area, including the pipeline route, has been subject to decades of trawler fishing, which substantially disrupts the seafloor and would have destroyed any archaeological sites of more recent origin.

In the end, claims of mythological proof of Tiwi traditional ownership of the Sea Country north of the islands appear to be contradicted by Tiwi mythology. The Tiwi believe that ancestral female Mudungkala spirits travelled through the land in the Palingarri creative dreamtime period and created its form and features.  Specifically, the mythology tells how they created the Tiwi Islands exactly as they are today. That is to say, the creation myth explains the modern landscape of the islands, with its lakes and headlands; it makes no reference to the land and sea beyond the modern islands.  In short, the Tiwi had no knowledge of a larger land or sea beyond the modern islands and the mainland until Western science revealed it to them. Tiwi people now claim that the submerged land was the home of their ancestors – and therein lies what Dr Corrigan called a ‘logical tension and chronological confusion’ between what is proclaimed in traditional mythology and what is claimed in the modern world. If the Tiwi of recent centuries had always known of the now submerged land to the north, their creation mythology would reveal it.  They claim that their ancestors lived on that land, is modern dogma and neither traditional belief nor verifiable fact.

Leaving aside the fact that the EDO and others are publicly committed to stopping the Barossa gasfield development, and the current challenge would appear to be simply the latest step towards that end, the case for legal protection of the cultural heritage claimed by the EDO’s Tiwi clients fails the pub test. We shall learn in the new year how those claims fare in the Federal Court test.