The compulsory land acquisition process launched by the State Government, which underpins controversial plans for a $30 billion gas hub at James Price Point, has been declared invalid by the Supreme Court.
In a decision handed down this morning, Chief Justice Wayne Martin found that three notices of intention issued by Lands Minister Brendon Grylls to take the land to establish the gas precinct are invalid.
Ruling on a challenge by Goolarabooloo man Phillip Roe and Jabbir Jabbir descendent Neil McKenzie, Justice Martin found that the notices had failed to provide a description of the land as required under the legislation.
However, Justice Martin said the declaration that the notices issued last year were invalid would not prevent Mr Grylls from issuing further notices of intention to compulsorily acquire the land.
A consortium, led by WA oil and gas producer Woodside Petroleum, wants to use land at James Price Point for a gas processing hub as part of wider plans for its $30 billion Browse LNG project.
Outside court, lawyer Michael Orlov, representing Mr McKenzie and Mr Roe, claimed the decision meant that the $1 billion agreement struck between the Kimberley Land Council, the State and Federal governments and Woodside to allow the development of the site was also invalid.
"The immediate practical effect of this judgment is that the Browse project agreement which depended on the validity of these notices is invalid and of no effect," Mr Orlov said.
Mr Orlov said while the Government could re-issue the notices in accordance with the legislation, the process would need to start again.
"Yes, the Minister can commence again, but it's a long process and we will have to wait and see what he does," he said.
But Premier Colin Barnett today downplayed the significance of the Supreme Court judgment, which he said would not affect the agreement struck with the Kimberley Land Council on behalf of traditional owners.
He said there would be no need to renegotiate the agreement and the court decision was not expected to delay the project, which was awaiting a final investment decision by the companies involved.
“The land was not compulsorily acquired,” Mr Barnett said.
“We have acquired it through negotiation with the Aboriginal representatives, that is according to the Native Title Act and that stands. Our arrangement and the deal, if you like struck with the Aboriginal people remains in place.
“Bear in mind that this is the biggest act of self determination for Aboriginal people in Australian history. It will generate not only jobs and training, but $1.5 billion in community benefits over the life of the project.”
Mr Barnett said the notices of intent to acquire the land would be re-issued in accordance with the court decision in the New Year.
“When the original notice of intent to acquire the land was issued, an area of some 7000ha was delineated, that was to allow some flexibility for where the final 3500ha would actually be,” he said.
“What the court said is you have to actually identify the exact 3500ha. That can be done, it will be done. So the State Government will simply re-issue the notice of intent on the 3500ha which is now identified as the exact site of the LNG plant.”
A Woodside spokeswoman said the court ruling would not delay the project.
"The provision of the land for the Browse LNG precinct is a matter for the state," she said.
"We don't believe that this result will impact on the project schedule."
The spokesman said the legal action by Roe and McKenzie was not supported by the registered native title claim group who were party to the Native Title Agreement.
"An area south of James Price Point was selected by the State as the site for an LNG precinct after extensive consultation with Kimberley Indigenous people," he said.
He said the decision by the Goolarabooloo Jabirr Jabirr claim group to sign a Native Title Agreement so the government could secure the land came after two years of negotiations and a vote.
The majority of claim group supported the agreement and the initiatives it contains, he said.
The spokesman noted that the judgement had made clear that the declaration would not prevent the Minister from issuing further notices of intention to take land in the area.
Mr Roe said he was happy with the judgment, which would allow him to take the next steps to protect his heritage and culture.
"It's great for us to go back home and have a smile on our face," Mr Roe said. "I thank the lawyers for a great job, but the fight is not over yet."
Separate legal action is also expected to be launched in the Supreme Court next week over an Aboriginal song line area on the land. If successful, work which disturbs the ground in the area would need to be assessed under the Heritage Act.
Andrew Chalk, another lawyer for the plaintiffs, claimed the Government was now "back to square one".
"You would have thought that with a project that the Premier has placed so much significance on, getting a simple thing like notices correct wouldn’t have been too big an ask," he said.
"I’ve got to say that it doesn’t necessarily bode well for how the rest of the project might be managed.”
Woodside shares closed off 71 cents, or 2.08 per cent, at $33.48 in a broadly weaker market.