TO understand the Aboriginal heritage concerns of Kimberley law man Joseph Roe, it is necessary to appreciate the cultural meaning of life and death. How ancestral essence flows below the surface of the ground and the worlds are bridged by songs that contain the codes of behaviour fundamental to sustaining the balance and wellbeing of the land and its people.
These concepts do not sit easily with the practicalities of modern-day life in an export-driven world.
Roe and other Kimberly law bosses are responsible for keeping their culture alive in an area now targeted by West Australian Premier Colin Barnett and Woodside for a gas hub. So, when they say protection of the area is a matter of life and death, it is easy to dismiss their concerns as histrionic.
But for more than the past three years some of Australia’s most respected Aboriginal heritage lawyers have worked pro bono on Roe’s behalf.
From their Sydney offices, the lawyers have been shocked at what they say has been the contempt with which the West Australian government and Woodside have run roughshod over the state’s heritage laws.
And indigenous heritage has been sold short by the Kimberley Land Council, which may have had the best of intentions but has lacked an ethical spine.
The lawyers say their investigations reveal a trail of deceit in which records that prove the legitimacy of Roe’s heritage claims have been overlooked or ignored.
The Kimberley Land Council, they argue, has worked with Woodside and the state against the interests of some of its own clients (Roe and the Goolarabooloo people).
Woodside has been prepared to tell the state government to withdraw warnings that it may be acting in breach of the law that could put its directors in jail. And the government has been happy to comply with its wishes.
The lawyers have demanded Woodside be prosecuted for criminal acts of damage but their requests have fallen on deaf ears. An application for emergency protection has sat on the desk of federal Environment Minister Tony Burke for more than 12 months.
Since the company bulldozers first went in, under the protection of state police, a 12-month statute of limitations on prosecution for the initial alleged breaches of the Aboriginal Heritage Act has expired, without the State’s investigation of the alleged breaches reaching a conclusion.
James Price Point is not another Hindmarsh Island, where accounts of secret Aboriginal business surfaced late in the day to derail a proposed development.
Documents prove that heritage values at James Price Point were identified long before the gas hub was first mooted.
It is not about whether or not there should be an export gas hub in the Kimberley.
Or whether an indigenous man with a flawed past has been seduced by the limelight of a national environmental cause.
The fact is, Dampier law bosses have never given their consent for a gas hub at the James Price Point site being pushed by Barnett and Woodside.
The traditional custodians have suggested a less culturally sensitive site further to the north that would allow the gas project to go ahead, the $1.3 billion compensation package for local indigenous groups to continue and what is arguably the nation’s most defined songline – a path made by Dreamtime ancestors – to remain intact.
The area’s significance, and Roe’s authority to speak for it, have been confirmed by Scott Cane, one of Australia’s most respected anthropologists, who was commissioned to investigate by the West Australian Department of Indigenous Affairs this year.
According to Cane’s report, there is no doubt Roe has a detailed knowledge of the core narrative that defines the Northern Tradition.
“It was readily apparent in conservation with Joe that he knows the religious narrative intimately, has a comprehensive grasp of the song cycles associated with the narrative, and is in command of the relationship between that narrative and the landscape in which it is embedded,” he said.
“It was my understanding from Joe Roe that the reasons for maintaining the integrity of the tradition go beyond issues of health and wellbeing into the core law and customs that define regional Aboriginal society and so give rights to land in this part of the Kimberley.”
For Chalk and Fitzgerald lawyer Andrew Chalk, Cane’s findings amplify the injustice that has been done to what he describes as perhaps the nation’s most comprehensively mapped songline.
“I have been doing this (cultural heritage work) since before native title existed,” Chalk says. “I was involved in the drafting of the Native Title Act. But I have not seen instances where senior people within the state or within a representative body have been so willing to flout their own legal duties to get an outcome.
“It is about the willingness to put aside lawful process within the Kimberley Land Council and the willingness of the KLC to put aside lawful process within the KLC and for the state to turn a blind eye to its own laws – which carry serious criminal penalties,” Chalk says.
It is a window into how heritage administration is managed in a mining boom in Western Australia, where no matter how significant an area is the government seems happy to look the other way. You will not find another dreaming track in Australia that has been so carefully mapped for such a long period and where in the face of an economic opportunity there is such a preparedness on the part of all the key agencies to ignore the evidence.
“The native title representative body and the state government’s heritage organisation actually want to put their heads in the sand and deny the existence and significance of it.”
According to Chalk, the foundation on which the injustice is built has been the willingness of the Kimberley Land Council to forget or ignore cultural heritage work it was involved in before the gas hub proposal ever existed.
Lengthy correspondence between the state Department of Indigenous Affairs and Woodside clearly shows how tough the company has decided to play.
After undertaking its own ground surveys last year and rediscovering heritage information that was accepted in court and by the Aboriginal Cultural Materials Committee more than 20 years ago, the department wrote to Woodside advising its development work at James Price Point may jeopardise a heritage site.
Woodside rejected the advice and successfully lobbied for it to be withdrawn. It declined to comment on correspondence with the government, in which it said the timing of the new heritage information was “vexatious”.
But, in a statement, a company spokesperson said: “Woodside is working closely with senior traditional owners to identify and carefully manage Aboriginal culture and heritage at the site of the proposed Browse LNG Precinct.
“We conduct our activities under the supervision of traditional owner monitors. Comprehensive ethnographic and archeological surveys conducted by traditional owners have been completed to identify the location and nature of Aboriginal heritage sites.”
A spokesperson for the West Australian Minister for Education, Energy and Indigenous Affairs, Peter Collier, confirmed the advice to Woodside had been withdrawn. “The department withdrew the letter and maps as the content was – upon review – unhelpful and did not properly advise Woodside of known registered sites,” the spokesman says.
The Heritage Act is meant to protect all sites, registered or not.
Chalk is highly critical of the way the KLC has handled the heritage issues at James Price Point.
Greens MLA Robin Chapple is prepared to be charitable and say the KLC lacks the “corporate knowledge” of work that has been done in the area over two decades.
But, according to Chalk, the land council has pushed the gas hub proposal “without reference to the critical Aboriginal heritage significance of the area”. A meeting of law bosses in 2005 supported the Roe position that the area was too sensitive to be developed. But the KLC pushed ahead.
“There is no issue the KLC has every right to push economic development and to propose a gas hub at this location,” Chalk says. “What they don’t have the right to do, though, is to mislead about the significance of the area, or bury records they hold, or to deny the legitimacy of positions they have pushed under affidavit in the past.”
Chalk’s complaints are about process. He says Woodside could have sought upfront approval for its works under the Aboriginal Heritage Act, but chose not to.
And he says the state has been prepared to participate in an abuse of process to strengthen Woodside’s hand. He accuses the company of acting outside the bounds of its heritage mission statement.
“Even if it is legal, should a company like Woodside be bulldozing a place like this?” Chalk asks.
Nonetheless, he has some sympathy for the KLC’s position.
“Two years ago, we would have given the same advice as the KLC that the prospects of stopping this project are so remote you are better off taking the compensation package and trying to manage the impacts because in all likelihood it is going to go ahead,” Chalk says. “But, equally, you have an ethical duty to present all of the evidence as to the significance of the area and not to hide the bits that don’t make your advice easier to give.”
Chalk says the difficulty for the KLC is that, no matter how logical its reasoning may be, Roe’s responsibilities under indigenous law do not allow for compromise.
“It is no different to saying to some Orthodox Jews, look, the Wailing Wall and East Jerusalem is not worth the grief.
“I am no fan of what is happening in Israel but – to people to whom that is such a sacred symbol – the arguments about economics and everything else don’t carry much weight. That is why this issue won’t go away.”