Now I know nothing about the Scarborough gas project in Western Australia except what I learned from the two sites below, the first from journalist James MacPherson’s Substack site and the second, which corroborates his report but is more extensive, from Australia’s Financial Review. You can access the sites by clicking on the screenshots (the Financial Review article is also archived here).
According to the site above, the gas project will cost $16 billion (Australian $) and “will power 8.5 million homes for the next 30 years”. The project had already been approved by the government and the company was cleared to begin construction. Then two days before that began, the company was hit with a lawsuit that forced a delay. The bizarre thing about the lawsuit, as recounted below, is that is was by an indigenous woman who claimed that the project would disturb supernatural whales that told fish what to do. Read below for more:
From Patrick’s article (bolding is mine):
Jessica Border, a young lawyer at the Environmental Defenders Office in Perth, said in an emergency court filing in September that her client, Indigenous leader Raelene Cooper, was a custodian of the Whale Dreaming, an Aboriginal story sung or chanted and known as a songline.
The Whale Dreaming states that Burrup Peninsula whales connect places, people and animals to each other, creating migratory patterns for animals and telling them when to eat and reproduce, according to the filing. It contains an “energy line” that passes through Woodside’s gas titles.
“The whale creates a path for the other animals like ‘grading a road’,” she wrote. “Songlines are essential to the survival of human beings and the ngurra or Mother Earth.”
A lawyer for the gas company, in a response filed in court, said: “Until the filing of Ms Border’s affidavit, Woodside had not previously been aware of the asserted existence of the Whale Dreaming within Murujuga [an area offshore the peninsula] or of the applicant’s carriage of a Whale songline.”
“The term ‘environment’ is defined to encompass the social and cultural features of ecosystems and of locations, places and areas,” he wrote in the judgment.
The use of songlines to fight resources projects is a tactic used by the Environmental Defenders Office [EDO], a Sydney-based not-for-profit company and relentless opponent of resources industries.
One of the EDO’s favourite courts is the Federal Court, which has shown more interest in songlines than any other. Some 20 judgments over the past decade have acknowledged the existence of songlines.
Justice Colvin, who ruled against Woodside, accepted Ms Cooper believed in whale spirits. “The evidence explains the cultural significance of the whales, turtles and dugongs in the sea at that place and of songlines, including the Whale Dreaming,” he wrote.
However, I can’t find the sentence in bold above in Colvin’s judgment, and its absence is puzzling. If you can find it, let me know. As far as I can see from a quick reading of the judgment, Colvin argued that there wasn’t sufficient consultation with indigenous people, including Ms. Cooper, who was “required to be consulted”, although there had been extensive consultation from other indigenous people.
If Cooper’s claim about spirit whales is indeed what she said, then the court is relying on mythology to stop a project that seems to have been environmentally vetted and approved. Cooper, of course, is relying on a delusion, but if environmentalists are supporting her to stop the pipeline, then they are dissimulating—giving credence to a ludicrous “songline” about fish-controlling whales to get the project stopped. For all I know, perhaps the project is a danger to the environment. But that doesn’t mean opponents must bring in religious mythology when considering its value.
And there are, as the article points out, dangers in using myths in court:
No High Court decisions cite songlines, according to legal databases. Legal academia has not embraced them either. One of the few journal articles on the topic, The Australian ‘songlines’: Some glosses for recognition, was lead written in 2017 by a country NSW academic, Gary Lilienthal, who has appointments with universities in India and Ethiopia.
“The pre-eminent authority on colonial land title and its relationship to Aboriginal title is me,” Professor Lilienthal said on Wednesday. “If you look back at the ancient laws around the world, including Talmudic law, most of them are transmitted by song.”
Among mainstream lawyers there are concerns that manipulating Indigenous mythology to stop resources projects could backfire, by alienating other Australians, as it did in last month’s Santos case.
What is the Santos case? An explanation:
The decision, by judge Craig Colvin, has become of greater significance since one of his judicial colleagues, Natalie Charlesworth, dismissed a similar challenge to a gas project being built in the Northern Territory by Santos, a decision that is forcing land rights lawyers and activists around the country to assess how they use Indigenous fables to protect Aboriginal communities.
Justice Charlesworth found an expert from the University of Western Australia falsely told Tiwi islanders songlines were used to stop construction of a Woodside pipeline.
These myths shouldn’t be part of court cases. While they’re of cultural significance, this ruling seems to imply that there is some “reality” to them as well—a reality significant enough to warrant stopping an energy project. Just as there is no place for mythology alongside empirical reality in science (viz. the kerfuffle over Mātauranga Māori in New Zealand), there is no place for mythology in this case.”
It all comes from regarding indigenous people as “sacred victims,” giving their word extra credibility that would not be conferred on other people. Yes, cultural desires must sometimes be considered, even if there’s no evidence for them, but this is not such a case,. As Richard Feynman said about the Challenger disaster, “”For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled.”
********************
Here’s part of the judge’s decision referring to Ms. Cooper (again, see the whole thing here..)
1 Two subsidiaries of Woodside Energy Group Ltd (together, Woodside) plan to undertake a seismic survey in waters off the coast of the Pilbara region in Western Australia. To do so, they must have obtained approval from the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) of an environment plan. On 31 July 2023, they obtained approval for a plan subject to conditions. Relevantly for present purposes, the conditions require Woodside to undertake further consultation with representatives of Aboriginal and Torres Strait Islander bodies prior to the commencement of the seismic survey.
2 Ms Raelene Cooper is a Mardudhunera lore woman, elder and a traditional custodian of Murujuga. Ms Cooper was a person who, under the terms of the conditions, was required to be consulted. Ms Cooper has commenced proceedings in this Court seeking judicial review on the basis that NOPSEMA did not have statutory power to make the decision to approve the environment plan for the proposed seismic survey (Ground 1). In the alternative, Ms Cooper claims that Woodside has not complied with the conditions requiring Woodside to consult with her and others and that she has standing to seek a permanent injunction restraining Woodside from undertaking the seismic survey (Ground 2).
3 The Court has granted an interlocutory injunction restraining Woodside from undertaking any activity described in the environment plan pending the urgent determination of three preliminary issues, namely:
(1) whether NOPSEMA had statutory power to make the decision to accept the environment plan where it was not reasonably satisfied that the consultation required by reg 11A of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) had been carried out, and so was not reasonably satisfied of the criteria in reg 10A(g)(i) and reg 10A(g)(ii);
(2) whether, if (1) is established, it would be open, as a matter of law, to refuse the relief sought on any discretionary basis identified by Woodside; and
(3) whether Ms Cooper has standing to seek relief in relation to Ground 2 of her application.
h/t: Don
This is why we shouldn’t judge the European missionaries of the 1600s who forced natives around the world to convert. They BELIEVED that they were saving the souls of the people that they encountered from being harvested by an evil underground demon, who wished to use those souls as cannon fodder in its perpetual war with a benevolent sky-being.
Some people believe in spirit wars. Some people believe in spirit whales.
Excellent retort!
This is a system that is just asking to be gamed. Any project certain groups oppose can be scuttled on these religious grounds.
Spirit whale? Aye, OK. Some people will fall for any old guff if it comes out of the mouths of certain groups. What makes me giggle if that some (former) ‘skeptics’ fall for all this nonsense.
Saying that, I remember PZ Myers would often consult his ‘spirit octopus’ late at night…
Filing the complaint just days before the start of construction is suspicious. Is it plausible that the plaintiff only recently learned of the project when it was publicized and in discussion with indigenous people for years? No. The filing was timed—perhaps in conjunction with environmentalists—for maximum damage to the company’s finances and reputation. It is bad faith and shameful.
It’s also absolutely standard practice. The purpose of these lawsuits is to stop the project (or win money), not to exercise some esoteric legal point. Of course you time your legal intervention to cause maximum damage. You would be insane not to.
Yes, of course different objectors groups collaborate. Do you think oil companies (mining companies, any other companies) don’t collaborate and collude too?
So, the Spirit Whale folks are as dishonest and cynical as the environmental attorneys. At least the oil company, as required by law, completed years of due diligence and their findings are publicly available. They are following the rules. The environmentalists are playing games.
Dishonest? To whom? They’ve (almost certainly) told their supporters and funders that they’re going to try to stop the project, and that’s what they’re doing (or alternatively, they’re going to screw as much out of Woodside as they can. Same difference.) Both are following the rules – to different ends.
The anti-gas-project folk are wielding a double-edged sword. An indigenous employee of the company who had a genuine vision was specifically told by a Spirit Whale that there was no problem. Stalemate.
Stalemate = No project.
Draw goes to the aboriginals.
The aboriginals are the plaintiffs; generally, a draw goes to the defendant.
In the spirit of reconciliation, the draw goes to the aboriginals whether they are plaintiffs or defendants. (This is actually policy in Canada: in upholding the Honour of the Crown, our Justice Dept. puts up only a token defence in suits like this and then offers a generous settlement.). In Sastra’s hypothetical, the opinion of the aboriginal employee of the gas drilling company would be deemed counter-reconciliatory and discounted. When enough money changes hands, the spirits can become quite accommodating and the litigation promptly settles.
People do actually try to sue aboriginal activists in Canada for damages from illegal blockades and land occupations in defiance of Court injunctions. They ignore Statements of Claim, just as they ignored the original injunctions. This is how asymmetric conflict works.
This reminds me of the protest in Hawaii against geothermal projects, claiming that drilling into volcanoes disturbs the gods.
It sounds like bribes will need to be paid before these projects can get started.
Bribery? In the “patch”? You sully a previously unsullied reputation.
Who, me? Seen Woodside screwing their government “partners” outside Australia? I’d rather develop Navalny Syndrome.
A typo in my name has sent my comment to moderation. Sorry.
I found it and let the comment through. Type carefully! Cheers.
Sigh. I thought, well I was encouraged by my (formerly fellow) Australians turning down the “Voice” nonsense there a little while ago.
I honestly thought it’d go the other way but it was a resounding NO from Australians, to avoid a 2 tier citizenship and monstrous, virtue signaling change to the constitution.
I think a lot of immigrant/citizens there also thought it was bizarre nonsense, less effected as they may be by Australian liberal white guilt.
I’m still a (dual, happily) citizen but you had to live there to vote.
This whale pipeline stuff is a step backwards but hopefully so absurd on its face as to loose in the end.
“Indigenous bollocks is still bollocks” – Dawkins.
D.A.
NYC
This may be seen as coarse, or vague, but growing up in Australia 1971-1991 it always seemed strange that the loudest, most public and richest “Aboriginal activists” presented (on TV at least) were nearly as lily white as I am.
D.A.
NYC
…same here in NZ.
In a democracy no citizen’s ‘dreaming’ takes precedent over anyone else’s. Law and facts are used to decide disputes over land and territory. Recognising particular mythologies as taking precedent over facts is undemocratic. Such is life in the woke world.
Mythical whales swimming in sky gas seems about right, whales being a bygone era of an energy source and here we are still hounding these creatures, get off our cloud!
I’d point out and sure there are no excuses to my atheist brain, but getting indigenous groups to drop the mythology is like asking a creationist to wise up.
Further, when you’ve dispossessed of lands any tactic to make a point, score compensation is valid. I get it as I see no difference when powerful individuals, corporations, the UN, take, fleece, taxpayers and line their pockets and /or trumpet their ideology.
It’s one big gaming board out there…
It is worth seeing what the case against Burrup Hub actually is: https://www.ccwa.org.au/burrup-hub
That may be so. The report is undated but it has at least one reference dated 2019 and it described capitalization to begin in 2020, so assume it came out in 2019. In the ensuing ~5 years, the investment and environmental risk seems to have been digested as reasonable and the aboriginal objectors have been paid off to end their opposition to the threats to their irreplaceable heritage. It’s only the environmentalists whose opposition remains predictably implacable. But they lost. So invent a whale spirit and find someone who feels she didn’t get paid enough the first time around to press the case.
This is the equivalent to gluing yourself to a road to further piss off people whom you can’t bring to your side with persuasion, so knock yourself out. The narrower point here is that an aboriginal religious argument is being advanced to frustrate public policy-making in a secular country that would just laugh at an argument from the local archbishop.
It’s always a spirit this or a spirit that, but it’s always cold hard cash that makes the problem go away.
Jerry the sentence in bold that you were looking for is at the end of para 9 of Colvin J’s judgment. It’s a section that describes the evidence he heard, not whether he found it compelling or has probative value as far as the outcome is concerned.