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Aboriginal land councils condemn Northern Territory government’s proposed fracking rules

A powerful Aboriginal land council has accused the Northern Territory government of treating traditional owners with contempt, as it prepares to let fracking companies sell gas from the Beetaloo Basin before production approvals are granted.

If passed this week, the government's changes to the Petroleum Act would allow the companies to sell or use gas fracked during the "appraisal phase" of their activities, when they assess the viability of gas reserves.

But the change — which is grouped with other amendments ahead of fracking production, which will begin next year — has been met with a growing tide of opposition from Indigenous groups who have condemned the government's processes.

"There was no consultation, no modelling of the impact or volumes involved, no time for us to properly consider it, no consideration of alternatives, absolutely no respect for traditional owners and native title holders," Northern Land Council (NLC) chief executive Joe Martin-Jard said in a statement.

"It's disgraceful."

The NLC has vowed to review existing agreements in the gas sector and is calling on the government to withdraw the contentious change.

Under the current laws, gas companies must consult with Indigenous groups to get exploration licenses on Aboriginal land.

The land council is specifically concerned the appraisal-phase gas extracted under existing agreements will become the property of fracking companies under the bill.

"This thing they call 'appraisal gas' is really stolen gas," NLC chairman Samuel Bush-Blanasi said.

"Except it's the territory government that's stealing it and handing it over to industry."

On Monday, the Central Land Council (CLC) said it feared the proposal eroded the rights of traditional owners and native title holders.

"This bill is not a well-considered solution to the issue of appraisal gas and could harm Aboriginal Territorians," its chief executive Les Turner said.

The CLC said it had since secured an urgent meeting with the government on Tuesday.

Indigenous Labor MP Marion Scrymgour, whose federal electorate of Lingiari covers most of the territory, undertook a briefing with the Deputy Chief Minister on Monday to discuss her concerns with the bill.

The change has previously attracted criticism from environmental groups concerned that gas companies could raise revenue without meeting the more stringent requirements for the issue of production licences.

The government's rationale for the change is to reduce the amount of appraisal-phase gas being burned or released at the point of extraction.

It has said the changes won't take effect until all recommendations from a wide-ranging inquiry into fracking — which has acted as a guiding document for regulation — have been met.

However, the inquiry did not recommend this change, which followed an almost identical proposal from a gas company months before it was introduced as legislation.

The Northern Territory's Aboriginal Affairs Minister, Selena Uibo, on Monday defended the government's law-making process.

"I know our upcoming legislation has been through a robust process," she said.

A spokesman for Mining and Industry Minister Nicole Manison said the government had constructive meetings with the land councils and still intended to progress the legislation.

Mabo lawyer flags potential legal challenges

The lawyer who represented Eddie Mabo in his landmark native title case has also raised questions about the legal validity of the proposal, warning the government could be vulnerable to lawsuits in the nation's highest courts.

Greg McIntyre SC said letting gas companies sell appraisal-phase gas was a significant enough expansion of mining activities to trigger negotiation rights required under the federal Native Title Act.

While the government has said any sales under the new rights would need traditional owner agreement, Mr McIntyre said that did not appear to be upheld in the legislation.

"None of that seems to have been provided for in this legislation, and if it's not provided for then the legislation will be inconsistent with the Native Title Act and would be found to be invalid," he said.

"If it doesn't adopt that process, there'd be a high expectation that native title holders will challenge the grants of these approvals, and that would probably start in the Federal Court.

"It could go straight to the High Court because it amounts to an inconsistency between federal and territory legislation, and therefore would be in breach of Section 109 of the Constitution."

The Nurrdalinji Native Title Aboriginal Corporation, which represents native title holders in the gas-rich Beetaloo Basin, also wrote to the government a fortnight ago to question the legality of the changes. 

Chair and traditional owner Johnny Wilson implored the government to rewrite the legislation so it required gas companies to negotiate with landowners before any gas was sold.

"We must be consulted. We must know what is happening on our country," he told the ABC.

"We have a responsibility to protect and care for our country for future generations.

"How can we do this when the government says it's okay for gas industries to not even talk to us or respect our rights to self-determine what happens on our country?"

In a statement, Ms Manison said gas companies would be required to ensure their agreements with traditional owners and native title groups aligned with federal legislation.

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