Law Below the Top Soil, by Professor Peter Botsman a concise history of the flawed proposal to develop Browse Gas at James Price Point

It is an imperative for all Australians to become aware of the processes that are driving the development of the North-West, and we consider that this report should stimulate wider interest and understanding of the key issues. Above all, we hope it will provoke a much needed debate than has occurred up to this date about the proposed LNG precinct planned for Walmadany (James Price Point). We thank the author, Peter Botsman, for his hard work and dedication over the last 2 years. Save The Kimberley, October 2012
http://www.savethekimberley.com/2012/10/11/law-below-the-top-soil-just-released/

Peter Botsman’s key findings as listed in Law Below the Top Soil:  
Summary provided by Meredith, posted on October 11, 2012

1. For overwhelming economic, social, cultural and environmental reasons the LNG precinct proposed for Walmadany (James Price Point) should not be built. The drivers to complete the LNG Precinct at Walmadany (James Price Point) are narrow: (1) State revenues and an ongoing push to industrialise the Kimberley (2) Woodside Petroleum’s potential for increased revenue (3) payments and benefits for the Indigenous community. These are not sufficient to (1) destroy the significant traditional cultural heritage of the area (2) to destroy a pristine and precious coastal environment (3) and to fundamentally undermine the people-centred tourist and cultural economy of the Broome region. Furthermore the hasty processing of the Browse resources will result in diminished revenue and an over-expenditure on infrastructure. In sum, such a project is against the national interest.

2. The Lurujarri Trail — the magic 80 kilometre stretch from Broome’s Roebuck Bay Caravan Park, (spanning Gantheaume Pt/Entrance Pt through Daparapakun, Jurlarri, Lurujarri and Minarriny to north of Coulomb Pt), to Bindingankuny — should be preserved in a pristine state forever in accordance with the wishes of the traditional law holders and custodians who know the law and spirit of the land.

3. The Browse Basin gas resources should be distributed by a pipeline to the Burrup Peninsula LNG plant or, if this involves too long a timeline for the gas lessees, then by floating gas liquefaction. The ‘use or lose’ it provisions engineered to fast track the Walmadany (James Price Point) development need to be the subject of a major parliamentary inquiry.

4. All Australian economic development on Aboriginal land needs to be in accordance with the principle of Indigenous Free Prior Informed Consent (IFPIC). The threat of compulsory acquisition of the Walmadany lands and the formal bureaucratic methods of the Native Title process that took place in relation to it need to be reviewed in the light of IFPIC. In short, Australia needs to bring its laws and processes into line with the principles of IFPIC.

5. Traditional Indigenous decision-making is best practice decision making. Decisions are made that are strong, binding and valued. Traditional processes do not occur by majority votes or participation in committees or through political representatives who can work within mainstream decision-making or negotiating frameworks according to a timeline. Decisions are made by ‘men and women of high degree’ who have a direct knowledge and expertise of the matters to be decided upon. The decisions of the leaders take time and are then endorsed by consensus as reflected in the liyarn of the customary group. Without these ingredients there can be no consent on matters as important as the status of lands and estates.  Aboriginal people, or any other people from outside areas have no bearing or right to determine decisions in such a forum.

6. There will be some who view these findings as anti-progressive and anti-development. In fact they are the basis for a more enlightened economic development process. Australia must recognise that destroying the environment is not progress and pursuing the fastest dollar possible is not sound economic development.

7. The hardship and plight of Kimberley Indigenous peoples is well understood. The need to celebrate and practise traditional law and culture as well as participate in the best of the mainstream world is the goal of all Indigenous people supported by all honourable Australians. The package of economic and social benefits negotiated by the KLC on behalf of the Jabirr Jabirr and other Kimberley Indigenous people was a step forward from the travesty of royalty payments in the Pilbara. There will be other opportunities to improve on these developments and to improve on this model, and to improve on it further.

Broome and the Kimberley have resisted the dictates of crass commercialism and development at all costs. Broome is the place where the White Australia Policy had only minimal effects on the shape and fabric of the people behind the famous fence that divided the European bosses from the greater community. The behind-the-fence Broome culture has created a wonderful spirit and people who know how to think in ten different cultural ways. This unique quality does not need just to be celebrated in the famous festivals of Broome. It needs to be a foundation for economic, social and cultural development of the region. Miners, economic developers and politicians would do better if they worked together with the people who have made the region so special. If they do so they are sure to have success and to bring wellbeing and prosperity to the region, Australia and the world.

Botsman Report October 2012