Remember the film The Castle? The Kerrigan family’s idyllic suburban lifestyle is threatened when a property developer compulsorily acquires their property. Well, a long way from the suburbs of Melbourne, on the spectacular red coastline of the Kimberley in WA, a similar process is taking place right now. Only this one is fact, not celluloid fiction.
There was little fanfare or public comment when W.A Premier Colin Barnett recently re-issued ‘Notices of Intention’ to take on lands between Quandong and James Price Point, 60km north of Broome, despite the land being located on the pristine and National Heritage listed Kimberley coastline. This major legal event passed quietly on 12th March 2012.
It may be the key underpinning the transfer of lands from Indigenous Traditional Owners to Woodside Petroleum.
First the back-story. Last December the W.A. government's prior 'compulsory acquisition' notices on the lands around James Price Point were ruled invalid as they did not properly describe the area of land the State Government wanted to acquire. As it currently stands, even with new compulsory acquisition notice, the proposed gas hub at James Price Point is on shaky ground at best.
There is still no formal sign off from the State or Federal governments. The W.A. Environmental Protection Agency has delayed the release of their environmental assessment, and the final investment decision from chief proponent Woodside has been delayed to possibly mid 2013. Buyers for the gas are still not committed. On site ground works and surveys are well behind schedule and the opposition in the local town of Broome is growing louder.
On top of this Woodside is selling down its share in the Browse Basin project and the joint venture partners in the project are not committed to the James Prices Point location but would favor piping south to the Pilbara to existing gas processing facilities.
Despite all this and seemingly against all commonsense, Premier Colin Barnett is pushing ahead with the proposed location at James Price point. Premier Barnett has ignored advice from Commercial Barrister Michael Orlov who represented Traditional Owners Philip and Joseph Roe and Neil McKenzie.
Following the Supreme Court challenge that ruled out the original compulsory acquisition notices on the 6th December 2011, Mr Orlov explained the complications for the Barnett Government affecting the negotiation process and the agreement struck with Traditional Owners.
The States agreement with the Traditional Owners needed to be premised on the W.A. State Government having the valid compulsory acquisition notices to commence negotiations on an agreement to use the James Prices Point site.
As this case has illustrated, the State had no legal compulsory notices and as such no legal standing, no procedural rights and no right to negotiate, according to Barrister Orlov. The action of the Supreme Court in ruling the notices invalid meant it is as if they never existed.
Tenure security and an agreement of Traditional Owners is also required before a final investment decision can be taken by Woodside and the joint venture partners and now the existing agreement is potentially open to legal challenge.
It means the agreements the W.A. Government has struck with the Kimberley Land Council on behalf of the Traditional Owners are now in question. The decision puts the future of the entire Browse gas project in doubt.
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