Disagreement over impact of Supreme Court decision on James Price Point traditional owner gas deal

By Ben Collins

ABC News online

Disagreement over impact of Supreme Court decision on James Price Point traditional owner gas deal
The West Australian Supreme Court has ruled notices of compulsory acquisition at James Price Point invalid. 
Lawyers representing James Price Point traditional owners opposed to gas processing are at odds with the 
State Government and Woodside on how this impacts the billion dollar deal with native title claimants.

Lawyer Andrew Chalk representing traditional owners Phillip Roe and Neil Mckenzie, says that the agreement between the Goolarabooloo/Jabirr Jabirr native title claimants, the State Government and Woodside that relinquishes any claims to native title at James Price Point in return for a benefits package worth over a billion dollars has been nullified by the Supreme Court decision.

"That agreement...under the native title act depended on those notices being valid. If the notices are invalid then the surrender of the native title...falls away." he said.

But Premier Barnett has dismissed the impact of the Supreme Court decision on the plans to develop the James Price Point gas processing precinct. He told the ABC that the State Government will simply reissue the notice of intent on the specific area that has now been identified. He points out that compulsory acquisition has never actually taken place.

"The land was not compulsorily acquired. We have acquired it through negotiation with the Aboriginal representatives, and that is according to the Native Title Act, and that stands." Mr Barnett said.

Woodside have released a statement saying that their current site investigation work will be able to continue, and that the agreement they struck with native title claimants allows for changes to be made to the compulsory acquisition notices which were the subject of the Supreme Court decision. The oil and gas company also emphasise that "This legal action by Roe and McKenzie is not supported by the registered native title claim group, who are party to the Native Title Agreement."

The Kimberley Land Council (KLC) says that the Goolarabooloo/Jabirr Jabirr native title claimant group continue to support the agreement signed with the State Government and Woodside. In a statement the KLC say that they want "...the State Government to provide certainty that the proposed development of James Price Point will go ahead, following a Supreme Court decision that questions the development's progress."

The Court decided that moves to compulsorily acquire the land at James Price Point were invalid based on the requirements to specify precisely which areas of land were to be acquired. ABC Kimberley reported the discrepancies over the areas of land the State Government were saying they needed for the gas processing precinct and the area stated in the notices at the time compulsory acquisition was first initiated in September 2010.

The Premier confirmed to parliament later that month that he was pushing ahead with compulsory acquisition before the site work had been done to establish exactly which bit of land would be used for the gas precinct. Premier Barnett told parliament that over 7,000 hectares would be compulsorily acquired for what would ultimately be a 3,500 hectare precinct.

"This is to allow sufficient flexibility to identify final locations for each component of the Browse LNG Precinct and associated infrastructure taking into account Aboriginal cultural heritage concerns, as well as environmental and geotechnical considerations." the Premier said.

But today the Supreme Court ruled that the Land Administration Act does not allow the Government to make a broad compulsory acquisition, then choose the portions required and then return the remainder to its original title.

Andrew Chalk says the basic point from this decision is that "...if the government is going to forcefully take people's land they should be required to state precisely what it is that they're intending to take."

There may be further ramifications for the State Government which is said to have used this strategy to compulsorily acquire land in other cases. But the real impact for Kimberley gas processing at James Price Point will be felt if Mr Chalk's claim that the native title compensation deal has been voided, is borne out.

If this is the case then the Government may have to start the longwinded compulsory acquisition process again, and the Kimberley Land Council would have to reconvene native title claimants and take them through the painstaking process of coming to a new agreement with Woodside and the State Government.

This would be another stumbling block for the controversial plans for gas processing at James Price Point. The decision comes after Premier Barnett urged Woodside to hold their nerve amidst reports of increasing economic reasons not to proceed with the project. And there is ongoing uncertainty about environmental and heritage impacts. If the Environmental Protection Authority raises concerns in their report on James Price Point, due at the end of next month, then the gas precinct will be fighting for survival on multiple fronts.

No doubt lawyers from both sides will be preparing for the next court battle over whether this decision affects the billion dollar deal with native title claimants.

The Minister for Lands has 28 days in which to appeal the decision. The ABC has contacted the Minister for Lands, Brendon Grylls, for a response.