“There’s a tremendous injustice happening in the Beetaloo basin,” says native title lawyer Dominic Beckett. “The genuine voices of concern, fear and opposition are not being effectively represented or heard by the people whose job it is to do that.”
Last month, the Northern Territory government gave the green light for gas production to begin in the basin, a region between Katherine and Tennant Creek that contains vast reserves of shale gas.
Scientists have warned the planned massive expansion of hydraulic fracturing – or fracking – for gas in the Beetaloo basin will have an unacceptable impact on the climate.
But on the ground there is another battle playing out.
Beckett has spent more than two decades working in native title, including a period at the Northern Land Council (NLC). But he now believes the land council is not effectively doing its job as a representative for traditional owners in negotiations with gas companies.
“So many of the people up there are opposed, are fearful, about contemporary fracking practices on their land and the scale of operations. That’s very clear from the time I’ve spent up there,” he says.
The NLC’s role is to help Aboriginal people in the northern half of the Northern Territory acquire and manage their traditional lands and seas. It’s a commonwealth-funded statutory authority that traces its roots back to the land rights movement of the 1970s and has been instrumental in traditional owners across the Top End winning back land.
But dozens of traditional owners in the Beetaloo basin now say the NLC is no longer acting in their interests.
A number of them have told Guardian Australia they felt under pressure by the land council to sign agreements with gas companies to frack on their country rather than risk the matter going to the native title tribunal. They say the NLC appears to them to be “in the business of facilitating fracking”. Johnny Wilson, a Gudanji-Wandaya man who is a jungai, or cultural lawman, for his family’s country, said: “The NLC is supposed to be representing us. But we see them doing not anywhere near that.”
But a spokesperson for the NLC strongly rejected the claims, saying the land council had “a proud history of fighting for land rights, against governments, miners and other vested interest groups [and] setting groundbreaking legal precedents”.
They say criticism should instead be directed at native title law, which doesn’t give a right of veto over gas exploration or production, and noted there was a diversity of opinions among Territorians, including Aboriginal people, about fracking.
Hundreds of fracking wells
The Beetaloo basin is the name governments and industry have given to an area of about 28,000 sq km between Katherine and Tennant Creek.
The name is drawn from a single pastoral station 40km off the Stuart Highway but the entire basin takes in communities including Daly Waters, Newcastle Waters, Larrimah and Elliott and, on its borders, places such as Mataranka, which is home to natural springs that feed into the Roper River.
The basin was the focal point of the former Morrison government’s proposed “gas-fired recovery” from the Covid-19 pandemic and is central to the Northern Territory government’s plans for a $40bn territory economy by 2030.
Despite the International Energy Agency’s warnings that no new coal or gas projects can proceed if the world is to limit global heating to 1.5C, the expansion of the Beetaloo has the backing of both major parties.
The main companies with active exploration in the basin are Tamboran Resources – which in 2022 bought Origin Energy’s projects in the Beetaloo – and Empire Energy. One of Tamboran’s exploration permits is a joint venture with Santos.
If the basin reaches full production, hundreds or potentially thousands of wells could be drilled using fracking across the landscape.
The 2018 Pepper inquiry into fracking in the territory found Aboriginal people from regional communities who made submissions to the panel “almost universally expressed deep concern about, and strong opposition to, the development of any onshore shale gas industry on their country”.
A bid to take back control
Wilson lives on an outstation on the Carpentaria Highway and says he can smell the gas well 20km from his home when there’s a change in the weather. He is worried about how fracking might affect songlines, which connect one place with another, and the groundwater that people and ecosystems rely on. Ninety per cent of the territory’s water supply comes from groundwater.
“It’s a tossing and turning situation at the moment,” he says. “You’ve got this energy in your head, all these questions: why is it happening like this?
“It hurts me really badly … Sometimes I pray at night for something to go right.”
Wilson is the chair of the Nurrdalinji Aboriginal Corporation, an organisation that is made up of more than 60 native title holders from 11 determination areas in the Beetaloo. There are hundreds of native title holders in the basin and at least 11 determination areas, depending on how you define its boundaries.
In December 2020, he and a group of six other traditional owners, represented by Beckett, applied to the federal court to have Nurrdalinji recognised as the body that would represent the rights and interests of native title holders in nine of the determination areas, including in their dealings with governments and developers about gas exploration.
In short, it proposed that Nurrdalinji take on a role performed by the NLC.
Beckett says the land council’s response was swift and aggressive.
In a letter to the lawyer, seen by Guardian Australia, the NLC recommended his clients discontinue their proceedings because the application “has no reasonable prospects of success”.
If they did not, it warned the land council would pursue an indemnity costs order for its full legal costs to be paid by the individual applicants and an Indigenous organisation by the name of Original Power, which was supporting the traditional owners.
“I think it was an attempt to scare off both the traditional owners and their supporters once and for all,” Beckett says. “While it hasn’t scared people off or daunted their opposition, it was enough to kill off those proceedings.”
The application collapsed after one pivotal traditional owner withdrew.
A spokesperson for the NLC said the land council was unable to support Nurrdalinji’s bid “because of significant deficiencies in the application” and said its response was “entirely reasonable”.
‘We want more transparency’
For years, traditional owners in the Beetaloo basin have queried the processes used to inform people and obtain agreements for gas exploration, some of which were signed in the early 2000s when little was understood about fracking.
Those attempts are documented in letters and emails – seen by Guardian Australia – that were sent to the NLC and companies such as Origin Energy between 2018 and 2020.
Traditional owners were supported in writing some of this correspondence by Original Power, an Indigenous organisation that “supports the right of Aboriginal and Torres Strait Islander peoples to self-determine what happens on their country and waters”, according to its executive director, Yorta Yorta woman Karrina Nolan.
“We are writing because we feel the NLC are not listening to the people from the communities,” says one letter from 2018, which was signed by 10 traditional owners from Beetaloo and neighbouring areas. “We want more transparency as to how the NLC operates especially with mining companies and whose interests are represented.”
A reply was not sent until six months later, in January 2019. In it, the NLC’s interim chief executive, Rick Fletcher, said the NLC provided “informed explanations about mining and fracking and its impact on country … at all consultations”. He offered to meet with traditional owners to discuss their concerns, but attempts to take up this offer were not successful amid a change of personnel at the land council.
Original Power sent more letters and emails on behalf of native title holders in 2019, requesting a meeting to discuss concerns about the consultation process and the potential effects of fracking. Nolan says they received no response to these requests and no meeting was organised.
By August 2020, senior NLC representatives were being invited to meet in Daly Waters with native title holders for 11 of the determination areas in the Beetaloo basin.
This invitation was extended in multiple letters that stressed the group believed “coordination and cooperation with NLC will ensure the best and most durable outcomes for the native title holders”.
On 25 September 2020, Janet Gregory, a Jingili woman whose lands are affected by fracking, wrote to senior NLC representatives and said traditional owners were “disappointed and sorry, but not surprised, that we received no response and that no representative of NLC attended the meeting”.
“We need to take greater control over decisions being made on our country,” she wrote, before requesting the NLC support the court application to formalise Nurrdalinji as the new representative body for native title holders.
In a reply, the NLC representatives wrote they were concerned that “after stating that the reason for the change was so that ‘we can take control of our native title and our country’, you go on in the letter to use language which reflects your opposition to fracking”.
“You are absolutely entitled to have negative views about fracking. We respect those views and some of us may share them,” it said. “But … our job is to properly represent wishes in particular of the senior decision makers from the estate groups whose country will be affected.”
In 2022, Nurrdalinji wrote that it had formed the view the “NLC is primarily in the business of facilitating fracking, rather than enabling members to make their own decisions about fracking, in a free and informed way,” in an unpublished submission to a current audit of the land council by the National Audit Office.
No right to veto
“It’s been a rollercoaster for people to understand,” says Janet’s sister Elaine Sandy, one of the directors of Nurrdalinji and a Jingili woman.
Sandy and her siblings have felt the presence of the gas industry in the Beetaloo since some of the earliest exploration agreements were negotiated with companies in the early 2000s.
Sandy says in those very early days there was little explanation about what fracking was or what its effects or potential scale could be.
“We never knew what it was all about,” she says. “There had been a promise of jobs and money.
“My concern is water … the environment and our land. Once it’s been contaminated that’s going to be [a] great disaster for us,” she says. “Not just for us, our people, our country, our environment – but also our neighbours, the pastoralists.”
Most of the areas targeted by the gas industry in the Beetaloo are non-exclusive native title lands, meaning they are lands held under pastoral leases where traditional owners have coexisting rights.
Native title holders don’t have a right of veto over resources exploration, but have a right to negotiate an agreement with gas companies and the NT government for jobs, protection for the environment, and payments for exploration to ensure benefits flow to what are often desperately poor communities.
These negotiations are time-limited and companies must negotiate in good faith. If after six months they have not secured an agreement, the legislation permits a company to go to the national native title tribunal and seek a determination to be granted tenure for its activities anyway.
Consultation and division
Elliott is a sliver of a town on the Stuart Highway where homes run on diesel paid for with power cards.
Residents live in two town camps, one on either side of the petrol station, and in houses scattered between. There’s a primary school, a sports and recreation park with a brightly painted basketball court, and an arts centre where people meet to chat under the din of industrial fans.
Guardian Australia visited the town, which is one of the focal points of the NT’s gas industry expansion, in mid March.
People who live in Elliott talk about their connection to the region’s ecosystems and waterways and the aquifer that runs under the Beetaloo, flowing north feeding the Mataranka hot springs that then discharge into the Roper River. Their deep ties to country are not only to what sits above the ground but what is below it.
One of the biggest concerns traditional owners worried about fracking have raised is that its effects could be cumulative and felt region-wide but consultation has focused on the boundaries of single permits, which “suits the gas companies … so their enormous combined impacts and the risks they present are not fully understood,” as Nurrdalinji wrote in its submission to the audit.
While in Elliott, Guardian Australia witnessed the way consultation about gas development can divide communities. A new company, Territory Gas, has applied for an exploration permit on the edge of the Beetaloo basin and a meeting was held with native title holders in March. If the application is approved, it would be the first new gas company to enter the territory for a number of years.
Notices were delivered to homes in Elliott, inviting native title holders to a meeting where they would be provided with information about “what is involved in petroleum exploration”, would have the opportunity to ask the company questions and “give the NLC instructions about whether you want to make an agreement with Territory Gas”.
Near the top of the meeting notice, the NLC noted Territory Gas had made an application to the native title tribunal to decide if the permit could be granted.
Guardian Australia did not witness the meeting. But after it, people raised concerns and some said they felt pressured to sign an agreement they did not support.
That a tribunal application hung over the proceedings indicates how fraught these processes can be.
“The NLC mob want us to say yes to the company,” Jingili man Mark Raymond told Guardian Australia. “The mining company want to push ahead in the tribunal.
“They said if we don’t sign an agreement [Territory Gas] will push through the back door.”
A spokesperson for the NLC said its staff members were courteous professionals.
“NLC staff members are monitored throughout their interactions with constituents and notes are kept,” they said.
A spokesperson for Territory Gas said its involvement at meetings was limited to company presentations and corresponding questions and answers, and they had not been party to any of the discussions between the NLC and native title holders.
“The company has complied with all the requests of the NLC including the provision of information and facilitation of multiple on country meetings with the native title holders,” they said.
In a statement to the ASX last week, the company said it had reached an agreement with native title holders.
‘Treating land owners like children’
There is another factor that is unique to the Northern Territory that is critical to understanding why a group of traditional owners tried to take back control from their own land council in court.
In every other jurisdiction in Australia, when a determination of native title is made a corporation is set up that holds the native title in trust, usually with local traditional owners on its board.
These corporations are generally referred to as prescribed body corporates (PBCs) and are meant to act as a forum for regional governance that manages interactions with governments and industry.
In the Top End of the Northern Territory, this has not occurred. Instead, the Northern Land Council established a shell corporation called the Top End Default Prescribed Body Corporate (TED PBC) that is the PBC for more than 70 native title determinations in the territory’s northern half over an area twice the size of Tasmania.
The TED PBC’s members and directors are also the executive of the NLC.
“The NLC is neither separate from, nor independent from the TED PBC, and vice versa. Indeed, they are indistinguishable,” Nurrdalinji wrote in its submission to the audit.
The NLC has told parliamentary inquiries this was only meant to be an interim arrangement before native title holders transitioned to their own PBCs. But it has also said it was a useful model for the remote communities of the Top End because they were not the target of large-scale development and thus rarely had to engage with industry.
The Beetaloo basin, as one of the largest proposed new fossil fuel developments in Australia, does not fit that description.
Beckett thinks the TED PBC model is abhorrent and paternalistic.
“It doesn’t put power back into the hands of the people who have been determined to be the native title holders,” he says. “I think this is treating land owners like they’re children.”
The spokesperson for the NLC said the TED PBC “delivers efficient and effective support for native title holders and avoids the dysfunction plaguing many parts of the PBC sector”.
James Fitzgerald, who has worked as a native title lawyer for 25 years and negotiated some of the largest and most lucrative mining deals with Aboriginal groups in Australia, believes the NLC’s approach to native title holders in the Beetaloo with concerns about fracking “seems to be fundamentally antagonistic”.
“The Beetaloo basin is one of the hottest industrial properties in Australia, yet when Beetaloo native title holders have attempted to opt out of the TED PBC arrangement they have met strong resistance from the NLC,” he says.
“Taken together, the NLC’s actions in the Beetaloo indicate an organisation that seems more interested in establishing and maintaining monopolistic control over native title representation than in serving the wishes of native title holders.” Fitzgerald has also who worked as a strategist for Original Power.
The spokesperson for the NLC said the land council sought to ensure development did not occur without the free, prior and informed consent of traditional owners.
They said lands covered by the Native Title Act notoriously did not allow for a right of veto over either gas exploration or production and the NLC, along with other land councils around Australia, had advocated for law reform that would give First Nations people genuine rights to decide whether and how their country will be mined or drilled.
“In the Beetaloo basin, much of the criticism that is currently levelled at the NLC would be more appropriately directed at the native title legislation under which the NLC is required to operate,” the spokesperson said.
Fitzgerald, however, said “regardless of the shortcomings of the Native Title Act” it was “within the power of the NLC to use its substantial heft to advocate in favour of native title holders’ wishes, including where a group or groups wants to resist fracking or other mining development on their land”.
“There are more tools available than just the Native Title Act,” he said. “National and territory environmental laws, cultural heritage laws, the negotiations themselves and political and direct action can be used to genuinely minimise the risk of environmental or cultural heritage impacts including, where necessary, agreements not to frack.”
The spokesperson said the NLC’s chief executive, Joe Martin-Jard, had told the Senate inquiry into the Beetaloo basin that “if any determined group of native title holders in the Top End makes a decision to replace the [TED PBC] with a different corporation, the NLC will respect and support that decision”.
They said “at most about 36 adult constituents” were in attendance at the Daly Waters meeting in September 2020 who sought to represent the native title holders of the entire Beetaloo Basin. The council said at the time it was not “satisfied that this appointment or this creation of Nurrdalinji and the purported appointment of it as a PBC were decisions that were authorised with the consent of all native title holders. On the contrary, it was quite clear to us that many groups and many senior native title holders either didn’t know anything about this or were opposed to this particular action”.
“When understood in context of the established facts, NLC’s response to Nurrdalinji and Original Power’s application in the federal court is entirely reasonable,” the spokesperson said.
But Beckett said the NLC’s remarks were “an attempt to downplay the significance of the meeting”.
He said Original Power had made considerable effort to inform and consult with a steering committee to make sure the meeting was well notified and a sufficiently representative group was invited to attend. He said this was done without the assistance of the anthropology and other resources available to the land council.
He said he was not aware of any other region-wide meeting that had been organised to discuss gas development in the Beetaloo and this was why people had requested one.
“In my view the NLC should have supported this meeting and attended it. This was a meeting requested by and for the benefit of people who it claimed to be acting on behalf of,” he said. “Instead, it chose to keep its distance and then criticised and marginalised it after the event.”
‘I want the world to know’
“At the moment we have a big fight, a big battle on our hands with companies that are entering the Northern Territory,” says Samuel Sandy, a Jingili man and deputy chair of Nurrdalinji.
Guardian Australia met with him in March, on the porch of his home in Katherine, while his great-grandson Henry played next to him in a Spider-Man suit.
“If they continue doing this fracking, if they’re going to drill all these wells and going to full production, there’s going to be a lot of dangers to the land.”
In 2022, Nurrdalinji directors visited a fracking well on Tanumbirini station. Sandy says when he saw the site “my heart sank”.
“It’s unforgivable on our beautiful country. The way it’s going, they’re going to destroy it,” he says.
“It’s like a storybook and someone has ripped the page out and burned it.
“I just want the whole world to know we desperately need help. The people in the Beetaloo basin need help.”