Wednesday, December 7, 2011


Neil McKenzie and Phillip Roe from Broome on the Dampier Peninsula, in The Kimberley on hearing news of the decision by Chief Justice Wayne Martin that the compulsory acquisition notices issued by Premier Barnett’s government are unlawful and any decisions made since the notices to take the Land at James Price Point and extinguish Native Title there, are also unlawful.

“This decision is a step towards the protection of part of a song cycle of immense cultural importance.

“As a legal case, the Court decision is important for all people who own properties in WA.

“In a true sense, it is a Castle moment where the Court and the Law stand as the guarantee for the rights of ordinary people in the face of huge political power and economic resources,” said Andrew Chalk, lawyer for the plaintiffs.

All people who have Land taken by a Government, need security. The Court says whilst the Government does have the power to take these rights away, it can only do it on the terms laid down by the Parliament.

In the present case, the Government issued notices covering a larger area than that which was required. This is something the Court decided was not allowed. The Land Administration Act requires the Minister to issue a notice that contains a clear description of what they want.

Description of the land that is required and Notices in this case, didn’t comply with that requirement.

“All law is a technicality but it’s also the only guarantee of people’s rights.

“The agreement which was negotiated with Woodside was done entirely in the shadow of the threat of compulsory acquisition, Those voting on that matter were told that if they didn’t agree to the proposal the Government would take the Land anyway,

“There are world class values at this site that will be trampled on without due consideration.

Mr Chalk says the deal struck to surrender the Native Title is now ineffective in light of the decision “it’s now a paperweight in light of this decision.”

“It’s back to square one as far as obtaining the rights to James Price Point and beyond.

“The records from the 80s and 90s clearly show that much of the proposed gas precinct would need digging up and thus they would need to destroy a large part of the site in order to build their precinct. It’s massive. Kilometres long and wide.

Mr Chalk said the Senior Custodian for this area “ has never shifted his option on the importance of this area.”

“He has been consistent. It is a position he’s inherited from his grandfather Paddy Roe who was equally determined to protect the significant heritage. What’s rare here, is it’s all been documented by anthopologists and the Government but then ignored by the State Government.

“It’s an important judgement, good judgement important not just for aboriginal people but any property owner in west Australian. It means the state can’t take your land without telling you what it is they’re going to take.

Goolarabooloo traditional custodian, Joseph Roe in response to the decision said from Broome:

“This is an opportunity for the Government and the gas companies Shell, BHP, BP, Chevron and of course, Woodside – to reconsider where they process Browse Basin

“If this gas precinct goes ahead our cultural heritage will be destroyed .in fact anywhere along the coast here on the Dampier Peninsula.

“This is something that those with cultural responsibility have been telling the Government and Woodside since 2005. And, much longer than that. In the Courts before now..

“It’s a songline that connects the people to their Country.
“It carries the law.

“It carries their understanding of the Cosmos in the form of song and ceremony.

“And relates it to places all along that Coast.”

Andrew Chalk explained that “The critical heritage approvals have not been given and will be subject to further proceedings and the heritage that is most critical here is the song cycle but which has been ignored throughout the process to date.

“We have written on behalf of the senior custodian to Woodside providing clear details about the location of that site. The real question is why Woodside has not been provided with these details by the State Government and KLC who have known the location of the song cycle in that area for 20 years.

It is misleading because the most critical bit of information has not been disclosed to the Federal Government. By the State and the KLC – the bodies charged with advising the Commonwealth on the significance of the area (as part of that Strategic Assessment Process). The Federal Government has received the draft report from WA and invited comments.

Implicit in the Chief Justice’s judgement is that as much as politician and companies might like to take short cuts, they can’t, it’s unlawful.

It’s not for Native Title claim groups or companies or even the Government to put themselves outside the operation of the Aboriginal Heritage Act. Its purpose is to protect the sites wherever they are, whatever anyone says. If they are a site, they are protected.

As Goolarabooloo traditional custodian Joseph Roe has said earlier this year: “They have been asking the wrong people.”

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