Pitfalls and Pipelines - Philippine Indigenous Peoples Links

326 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
Under the Australian Native Title Legislation, the bar to proving that
indigenous peoples have a strong connection to their land has been set
extremely high, and the hoops that we have to go through are many.
As a result the desire to opt out of the litigation process for something
less onerous had become very attractive. And that something was
negotiation—not only with the government but also with industries that
could offer economic benefits. But that meant using native title rights as
a bargaining chip for economic gain. We had put that bargaining chip on
the roulette table and what had been coming up black was coming up red;
that native title chip had become worthless, and for some, there was no
chance of winning it back.
Free, prior and informed consent is all very well in an international
convention, but the reality is, Australian legislation such as the Native Title
Act, does not allow those rights in their full capacity. Under the Native
Title Act, traditional owners have what is called the “right to negotiate”
for certain activities such as mining to occur on their land. But this right
to negotiate is about how that activity proceeds; it does not provide the
right to negotiate on whether the activity proceeds or not. In other words,
traditional owners do not have the right to veto over mining projects as is
implied under free, prior and informed consent—we do not have the right
to say “no.” Traditional owners have had to negotiate deals for the best
terms they could achieve because if they did not negotiate, the mining
activity was going to go ahead anyway, regardless of their views.
This reality recently became startlingly clear. The Western Australian
government announced that they would resort to compulsory acquisition
of land in the Kimberley region if there could not be a Liquid Natural Gas
(LNG) agreement reached with the local Aboriginal people for access to
land for the development of a LNG processing precinct. This idea had
been investigated since the discovery of gas reserves in the Browse Basin
several years ago. The precinct could provide hundreds of jobs, millions
of investment dollars and a long-term economic diversification for Broome
and the West Kimberley Region of Western Australia. Plants in the
precinct would process gas from the Browse Basin, located some 400 km
offshore. Estimates of the extent of the reserves are around 27.5 trillion
cubic feet of gas and 600 million barrels of condensate, with an expected
project life of some 40 years. Several resource companies will be involved
in the extraction of the gas with individual companies needing a mainland
plant in order to process the LNG before exporting to international
markets. This would have meant that individual companies would require
different sites for the development of their own processing plants.