Australia’s aversion to compulsory settlement for maritime boundary disputes comes back to bite it

This is a guest post by Professor Andrew Serdy of the The Institute of Maritime Law at the University of Southampton. It builds on a guest lecture he gave to the Aberdeen University Centre for Energy Law. Robert Veal, Senior Research Assistant at the Institute of Maritime Law, contributed to this post. A longer version of this post is available at the Institute of Maritime Law’s website.

The background

The long-running saga over the maritime boundaries between Australia and Timor-Leste has been keeping lawyers for both sides busy. There have been no fewer than four separate legal proceedings in recent years related directly or indirectly to the issue.

One of these is the subject of this post: the invocation by Timor-Leste of compulsory conciliation under Article 298 of the United Nations Convention on the Law of the Sea (UNCLOS) and Annex V to UNCLOS as a means of settling permanently their outstanding boundaries, despite a clause in the 2006 Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (CMATS) by which the parties agreed not to invoke such proceedings against each other for 50 years, with particular reference to the ruling by the conciliation commission to reject Australia’s challenge to its competence, delivered on 19 September 2016.  Also tangentially relevant to the conciliation is another of the four proceedings, an arbitration under the 2002 Timor Sea Treaty, in which Timor-Leste seeks a declaration of the invalidity of CMATS on the ground that its conclusion was tainted by the alleged planting of listening devices in 2004 by the Australian Secret Intelligence Service in Timor-Leste’s cabinet room.

Much has been written over the years about the substance of the dispute as to where the maritime boundaries between Australia and Timor-Leste should lie, and the conciliation commission (the Commission) will come up with its own recommendations now that it has rejected the Australian challenge to its competence.  Readers unfamiliar with the arguments on both sides will find them conveniently illustrated by the Timor-Leste and Australian slideshows from the public opening session of the conciliation hearing on 29 August 2016 (which, along with the transcript of that session and the Commission’s preliminary ruling, are the only publicly available documents at the time of writing; in particular, the written pleadings have not been released), but this post is confined to the procedural aspects of the conciliation, which are novel enough in themselves.  Indeed this was the first-ever compulsory conciliation under UNCLOS (or at least the first that has entered the public domain – it cannot be excluded that parties to earlier disputes have settled or attempted to settle them by conciliations which they have agreed not to disclose).

Conciliation as a method of settling disputes

Conciliation has been defined as a procedure in which the disputant parties establish a commission or other body to help resolve their dispute, whose chief task is to examine the dispute impartially and attempt to define the terms of a settlement it thinks likely to be acceptable to the parties. UNCLOS provides for both voluntary (see Article 284) and compulsory conciliation.  The latter is an unusual combination of compulsory procedure with a non-binding outcome, but is occasionally encountered elsewhere, for example the Vienna Convention on the Law of Treaties provides for compulsory conciliation for a small class of disputes arising under it (though again none is known to have actually occurred).

As provided for by Article 3 of Annex V, a five-member conciliation commission was constituted.  Pursuant to Article 3, the party initiating the proceedings appoints two conciliators and the other party does the same.  The four chosen conciliators together in turn nominate a fifth who becomes the chairman.  It comprises HE Ambassador Peter Taksøe-Jensen (Chairman, a former UN Assistant Secretary General for Legal Affairs – I am grateful to a member of the audience at the initial presentation of these thoughts at the Faculty of Law of the Victoria University of Wellington a few weeks ago for pointing this out), Dr Rosalie Balkin (a former Director of the Legal Division and Assistant Secretary-General of the International Maritime Organization, a specialised agency of the United Nations, appointed by Australia), Judge Abdul G. Koroma of the International Court of Justice, appointed by Timor-Leste), Professor Donald McRae (a member of the International Law Commission, a body of experts reporting to the Sixth Committee of the UN General Assembly, appointed by Australia) and Judge Rüdiger Wolfrum of the International Tribunal for the Law of the Sea (ITLOS) established by UNCLOS, appointed by Timor-Leste).  Its decision to uphold its own competence of 19 September 2016 despite the objections put forward by Australia was taken unanimously and will, I suspect, have taken many observers by surprise, myself included, though this is not to say that it is wrong in law.

The relevant law

Australia’s analysis, like my own before the event, took as its starting point Article 4 of CMATS, which remains in force until and unless the Timorese attack on its validity succeeds.  This provision is headed “Moratorium” and provides in pertinent part:

  1. Neither Australia nor Timor-Leste shall assert, pursue or further by any means in relation to the other Party its claims to sovereign rights and jurisdiction and maritime boundaries for the period of this Treaty.

[…]

  1. Notwithstanding any other bilateral or multilateral agreement binding on the Parties, […] neither Party shall commence or pursue any proceedings against the other Party before any court, tribunal or other dispute settlement mechanism that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea.
  2. Any court, tribunal or other dispute settlement body hearing proceedings involving the Parties shall not consider, make comment on, nor make findings that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea. Any such comment or finding shall be of no effect, and shall not be relied upon, or cited, by the Parties at any time.

[…]

  1. The Parties shall not be under an obligation to negotiate permanent maritime boundaries for the period of this Treaty.

By Article 12 of CMATS the “period” of this Treaty” referred to above is 50 years from its entry into force, which took place in 2007.  On its face, therefore, there has been a clear breach of Article 4 by Timor-Leste in calling these conciliation proceedings into being.  Nothing in the words of Article 4 suggests that the fact that the proceedings do not have a binding outcome makes any difference in that regard.  Of course, if the Timorese claim in case (1) succeeds, CMATS will have been void ab initio and thus there will have been no breach of it by Timor-Leste after all, but it would be risky for it to rely on that outcome, since that condition has not yet been satisfied, and may never be.

The Commission, however, rejected this approach and instead based its analysis on the dispute settlement provisions within UNCLOS, grouped in Part XV (Articles 279 to 299), since it was to UNCLOS that it owed its own existence.  It said that, having been created under UNCLOS and not under CMATS or the Timor Sea Treaty, it had no authority to decide any secondary claim that there had been a breach of CMATS by Timor-Leste in bringing the primary claim.  Instead, it began with Article 280 of UNCLOS: “Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.”  This makes clear that the UNCLOS compulsory mechanism for settling disputes is a default one and can be displaced by agreement of the parties to a dispute, even if what they put in its place is non-compulsory or leads to a non-binding outcome, or both.

Article 280 is one of three relevant provisions in Part XV of UNCLOS for this conciliation.  The effect of making an alternative choice under Article 280 is governed by Article 281, headed “Procedure where no settlement has been reached by the parties”, which is in the following terms:

  1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.
  2. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit.

This is another way of saying that the compulsory procedures of Part XV can still be applied to a dispute if the alternative methods of the parties’ own choice under Article 280 have not led to its settlement, unless the original agreement to contract out of Part XV precludes this.  Article 281 was critical to the result in the Southern Bluefin Tuna arbitration where an arbitral tribunal formed under Annex VII to UNCLOS found by majority that it lacked jurisdiction because the 1993 Convention for the Conservation of Southern Bluefin Tuna procedurally displaced UNCLOS through its optional dispute settlement provision, from which it inferred the exclusion of any further procedure within the meaning of Article 281(1) of UNCLOS, even though the relevant provision of the 1993 Convention was completely silent on the matter.  Sir Ken Keith dissented: his view was that a clear indication of intent to displace UNCLOS would have been needed in the 1993 Convention but was absent there.  This decision has in the main been heavily criticised and has very few supporters, so it was not unexpected when in 2015 a differently composed Annex VII tribunal in the South China Sea arbitration accepted the Philippines’ invitation to depart from the reasoning of the Southern Bluefin Tuna tribunal, deciding that the non-compulsory procedures of the 1992 Convention on Biological Diversity, to which the Philippines and China were both parties,  could not displace Part XV jurisdiction as argued informally by China in a position paper.

The last relevant provision of Part XV of UNCLOS is Article 298.  This creates, in the words of its heading, a series of “[o]ptional exceptions to [the] applicability of section 2”, in other words to Articles 286 to 296 which is where the compulsory procedures are found.  One of the limited number of opt-outs it offers is for maritime boundary disputes:

  1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may…declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:
  • (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, […] provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and […] no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; […];

Australia had made such a declaration in 2002, shortly before Timor-Leste’s independence.  Unlike the other opt-outs in the remaining subsubparagraphs, for a subset of excluded disputes this is not the end of the road: no further procedure is available for pre-existing disputes, but for those arising once UNCLOS is in force, compulsory conciliation of the kind represented by these proceedings is contemplated.

The unsuccessful Australian objections

The foregoing provisions collectively enabled the Commission to dismiss each of Australia’s objections made on six distinct grounds, which I paraphrase in the underlined text before commenting on each:

  1. Article 4 of the CMATS Treaty precludes either party from initiating compulsory conciliation under Article 298 of UNCLOS and from engaging in the substantive matters in dispute in such proceedings. As noted above, the Commission took the view that it had no authority to give effect to a treaty other than UNCLOS except where UNCLOS itself dictated this, adopting a narrow reading of Article 293(1), which prescribes the sources of law that a Part XV forum should apply as follows: “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”
  2. The CMATS Treaty falls within the category of “provisional arrangement[s] of a practical nature” specifically contemplated by Articles 74 and 83 of UNCLOS for the situation when a boundary delimiting the parties’ exclusive economic zones and continental shelves respectively remains outstanding, hence the moratorium in CMATS was not displaced by the later entry into force of UNCLOS between the parties, which occurred in 2013 when Timor-Leste acceded to UNCLOS (Australia having been an original party to it since 1994). To the extent that this argument also depended on direct application of CMATS, the Commission declined to give effect to it for the same reason as the first ground.
  1. In 2003 the parties agreed on a mechanism for resolving their boundary dispute, i.e. negotiation. The CMATS Treaty built on that agreement, confirmed negotiation as the method of dispute resolution, and added a time stipulation, namely that the negotiation was not to occur for 50 years.  Accordingly, the Commission’s competence is precluded by UNCLOS Article 281, which recognises the CMATS Treaty as a relevant choice by the parties as to how their dispute is to be settled.  Although this argument is more in tune with Commission’s approach of needing a gateway within Part XV of UNCLOS itself through which the previsions of another treaty can enter into its considerations, the Commission interpreted both Articles 280 and 281 and CMATS strictly: Part XV would in principle yield to any agreement to settle the dispute by some other means, but the moratorium in Article 4 of CMATS was something different: in fact it amounted to an agreement not to settle the dispute for 50 years.  Thus the gate remained shut, and Article 281 proved to be of no use to Australia.
  1. The parties’ dispute over maritime boundaries dates from 2002, before UNCLOS entered into force as between them, so the first condition of Article 298, that the dispute must have arisen “subsequent to the entry into force of this Convention”, was not met. Had this objection succeeded, the failure of the prior ones would not have mattered, since any one objection on its own would have had the desired effect for Australia of putting an end to the conciliation.  But it too failed, in this instance because the Commission interpreted against Australia the ambiguity in the quoted phrase: does it refer to the entry into force of UNCLOS generally, which occurred in 1994, or as between the particular disputants, which did not happen until 2013?  The objection would succeed only under the latter interpretation, but the Commission preferred the former.
  1. Because both Parties have observed the CMATS Treaty, there have not been negotiations on the maritime boundary, which Article 298 requires before resort to its provisions. Accordingly, the second condition of Article 298 is not met.  In this instance the Commission took a broader view of what was encompassed by the term “negotiations” – there clearly had been negotiations on the dispute as a whole, if not, at Australia’s insistence, on the boundary itself.
  1. The dispute is “inadmissible” because Timor-Leste was seeking to seise the Commission in breach of its treaty commitments to Australia, or at the least the Commission should stay the conciliation proceedings until the Tribunal constituted to hear the related arbitration concerning the validity of the CMATS Treaty has reached its decision on that point. The first half of this contention logically would have to suffer the same fate as the first two objections, but under other circumstances – i.e. if the Commission had decided those points differently – there would certainly have been an argument that it would make sense for the conciliation to wait until the fate of CMATS on which Australia was relying had become apparent through the outcome of case (1).

Next steps

So where to from here?  One important consequence of the Commission’s disinclination to apply CMATS is that Australia’s (and my own) contention that Timor-Leste’s initiation of the conciliation was in violation of the Article 4 moratorium remains undetermined, thus leaving Australia free to pursue that claim in whatever ways are open to it.  The obvious solution would be to bring a case of its own against Timor-Leste under CMATS alleging its violation, and to seek by way of remedy an order compelling Timor-Leste to discontinue the UNCLOS proceedings, a kind of international equivalent of an anti-suit injunction.  This, though, is easier said than done.  Although there is a provision of CMATS dealing with dispute settlement, Article 11, all it says, reflecting Australia’s negative attitude towards compulsory settlement of maritime boundary disputes, is: “Any disputes about the interpretation or application of this Treaty shall be settled by consultation or negotiation.”  So, ironically, Australia would need Timor-Leste’s consent to bring a claim against it to seek such an order, which is clearly not going to happen.

This leaves the conciliation to run its course, and the Commission has indicated that it will allow it a year to run.  Australia has announced that it will participate fully, a welcome expression of readiness to follow the UNCLOS procedures which were beginning to show signs of fraying at the edges after the respondents in two recent cases, the Arctic Sunrise and South China Sea arbitrations, refused to take part.  One final ambiguity may need to be resolved once the Commission reports back to the parties: UNCLOS Article 298(1)(a)(ii) states that “…after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree[.]”

Here it is not clear which of “shall” and “mutual consent” takes precedence: in other words, would the failure of post-conciliation negotiations pave the way to an ordinary compulsory Part XV case to decide the boundary through a putative oxymoronic obligation of the parties to consent to this?  This would suit Timor-Leste, but is the very thing Australia has been at pains to avoid.  Or are the disputants free to give or withhold their consent as they please, such that only if both of them consent “shall” the question ultimately come before a Part XV forum?  Thus it is by no means beyond the bounds of possibility that yet another case would become necessary a year or so from now to decide this point.

A fuller version of this post is available for download at the Institute of Maritime Law’s website.

Averting an Australian ‘Deepwater Horizon’: the power of the people

 

This post is by Professor Tina Hunter, the co-Director of our Centre for Energy Law

Today some of us will go to the movies. A few of us will see the new action thriller called Deepwater Horizon. The movie is the ultimate action thriller, starring Mark Wahlberg as the action hero. However it is no Hollywood tale; rather it is a real-life story, and one that is not a thriller but a horror for those who were involved. Let me explain.

On the evening of 20 April 2010, only hours after executives from BP had visited the drilling rig Deepwater Horizon in the Macondo field of the Gulf of Mexico to celebrate seven years of work injury free, the rig was ripped apart by an explosion. The causes of the explosion and consequential oil spill are complex, but were essentially caused by a loss of control of the oil well below the rig. As the Presidential report noted, ‘the immediate causes of the Macondo well blowout can be traced to a series of identifiable mistakes made by BP, Halliburton and Transocean that reveal such systematic failures in risk management that they place in doubt the safety culture of the entire industry”. The impact of this accident is well known, with 11 men losing their lives, and the resulting oil spill the worst oil spill ever recorded in a single event.

The reason for the severity of the oil spill is the loss of control of the well. Unlike an oil spill from a ship, such as the Torrey Canyon disaster in 1967, where the volume of oil spilled is confined to the cargo, the spill from an out of control well just keeps going. And going. Until a well is stopped from leaking (capped), it will continue to leak. This is what happened in the case of Deepwater Horizon, where it took 87 days to cap the well and stop the flow of oil. In that time, approximately 4.9 million barrels of oil leaked into the rich fishing grounds of the Gulf. Such a spill caused a massive impact on fishing, severely impacting on the livelihood of those in the Gulf Region.

By now some readers will be thinking ‘so what – this was a long time ago?’ The reason for reopening the Deepwater Horizon wound is not because of the current film, but rather something much more important – the possibility that it could happen again in Australian waters.

In late 2010, as part of the annual petroleum licensing round, the Australian Government granted BP (yes, the same BP) a licence to explore for petroleum in the Great Australian Bight (GAB), over an area of almost 25,000km2, located approximately 500km off the coast of South Australia. The water depth in the license area ranges from 140m to approximately 4,600m. In comparison, the well in Deepwater Horizon was drilled at a depth of 1,500m.

So, to clarify – the Australian Government granted BP, who lost control of a well in 1,500m of water and caused the largest ever oil spill, the right to drill in waters up to 4,600m deep.

Furthermore, the physical environment in the GAB is not at all like the Mexican Gulf. Rather, it is part of the Southern Ocean, known for some of the most brutal weather on earth, causing the death of many sailors.

Normally the granting of an offshore petroleum license raises barely a response from the Australian public. At the time of the grant of license, there were some concerns. These were in fact attributable not to Deepwater Horizon, but to an earlier offshore oil spill in Australian Waters: the Montara Oil Spill. The spill was a result of the failure of the cementing of the well by Haliburton (yes, the same Haliburton that did the cementing for the Deepwater Horizon well), and the company with the license, PTTEP Australia. The following inquiry and report identified a number of causal factors, as well as major problems with the way that offshore petroleum activities are regulated.

At the time of the Montara Inquiry I expressed my concerns regarding the regulatory framework for Australian offshore petroleum activities. As a result of the Inquiry, the Australian Government undertook to reform the offshore regulation framework. However, the federalist structure created many difficulties, something I commented on in 2011. The Australian government pressed on with the reform, with a new system of regulation shifting regulation of offshore petroleum from the states to the Commonwealth, for the first time in the forty-year history of offshore petroleum extraction. In 2014 I analysed the legal changes that had occurred, concluding that the legislative changes, whilst going some way to addressing the problems, were not addressing the root cause of the well control accident of Montara.

In 2013, BP made an application for Commonwealth approval under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBCA) the general-purpose act for environmental protection. This approval would allow drilling in an area that was a protected marine reserve, and the home of migratory whales and dolphins. BP was proud that even if an oil spill did occur, it would take 33 days to reach the shores of South Australia, so everything would be ok. Besides, BP stated, they had learned their lesson from Deepwater Horizon, and would not spill again. This is at a time when the Norwegian Petroleum Regulator (PTIL) requested BP to demonstrate why they should be allowed to continue on the Norwegian Continental Shelf after an oil leak in 2012. Although the EPBCA application was approved, many people (including me) made submissions to the government, stating that the BP Submission for approval was poor, and there were many flaws in the study. Unfortunately the public submissions in this instance were not released. The reasoning for the approval under the EPBCA was the government felt that the Regulator, the National Offshore Petroleum and Environmental Management Authority (NOPSEMA) would require greater controls under specific petroleum legislation.

Like many others, I did not have much hope in NOPSEMA. Although they had managed safety for over 10 years, they were effectively a newly formed agency for environmental management, regulating wells under the same criteria (Good Oilfield Practice- GOP) that had been in place when the Montara spill had occurred, and of which I have been quite scathing. Indeed, public momentum against BP drilling in the GAB was rising, with grassroots organisations such as the Great Australian Bight Alliance and others fighting to stop the drilling. This response was unprecedented in Australia. Never before had we seen such response to an activity that occurs far out to sea. Not even after Montara was such a response seen. Clearly, the public was concerned about BP’s track record, and its role in Deepwater Horizon.

Such public scrutiny on BP’s plan in the GAB placed the regulator NOPSEMA, under the spotlight. BP’s initial application to NOPSEMA in 2015 for approval to drill a well was rejected, with NOPSMEA requiring further information. The plan for approval was resubmitted in March 2016, and NOPSEMA again requested BP to modify the plan, to which BP submitted a second plan in August 2016. The result of the reassessment was due mid October October.

During this period, the Australian Senate’s Environment and Communications References Committee took the unprecedented step of launching an Inquiry into the potential environmental, social and economic impacts of BP’s planned exploratory oil drilling project, and any future oil or gas production in the Great Australian Bight, which I was privileged to be a part of. I have long written of deficiencies in the Australian offshore petroleum regulatory regime, and the capacity of the regulator, NOPSEMA. These concerns have now been expressed publicly, with Emeritus Professor Bob Bea, the founder of the Centre for Catastrophic Risk Management at Berkley University expressing major concern over the regulator’s role, with Professor Bea noting that ‘the current Australian regulatory approach to the BP drilling operations as “hope for the best”’. The secrecy within which NOPSEMA had undertaken the assessment, and failing to make public any of the conditions, meant the process lacked transparency, with the Australian Senate calling the regulator ‘weak and secretive’.

Before the approval to drill could be granted or rejected by NOPSEMA, BP announced, on 11 October 2016, its withdrawal from drilling in the GAB. This withdrawal was met with mixed reactions. Predictably, many from the community exhibited sheer elation. Quite possibly, the assessors in NOPSEMA are secretly wiping their brow and thinking ‘thank goodness – now we don’t have to make a decision’. But for a small minority of the population, there is disappointment. The Federal Resources Minister, Matt Canavan, expressed bitter disappointment about the BP decision not to proceed, and observed that the celebratory response to the announcement showed ‘the ugly side of green activism’. (But if the ugly side of green activism saves the lives of people and animals by preventing a result of a Deepwater Horizon-type incident, maybe it is not so ugly after all).

I applaud the decision of BP in withdrawing from the GAB. As far as I can see it is one of the more sensible decisions they have made in the last ten years. However, I applaud much more the tenacity of ordinary Australians that have worked tirelessly to stop this unnecessary drilling in a Marine Reserve where the only likely benefit will be 100 new jobs and some taxation. Tangentially, it can be noted that that tax system has been labelled, like the offshore petroleum regulator, as weak and lacking transparency.

Some nights, when I am up late working on an article related to offshore petroleum, the faces of the men who died on Deepwater Horizon still haunt me. We will never know what it was that caused the ignition of the gas that rushed up the well. What we do know is that whatever it was, it killed 11 people and caused environmental devastation on an unprecedented scale. Had the Australian petroleum regulator NOPSEMA and BP had their way, it could have been the faces of Australian men and women that might have tortured me, along with the vision of whales, dolphins, tuna, and other marine life gasping for life and struggling for warmth and buoyancy in the cold, dark Southern Ocean. For now, that will not happen. Such is the power of the Australian people in averting an Australian Deepwater Horizon.

Same issues, different countries? The issues surrounding shale gas extraction

Blog by Dr Tina Hunter, a Reader in Energy Law and the co-Director of our Centre for Energy Law

The last few years has seen the British public turn its attention to the alleged evils of shale gas extraction in the countryside. Community concerns include the contamination of ground water, the impact of the activity on the local environment, inability of shale gas extraction and agriculture to coexist, and the continued use of fossil fuels. This community consternation started at Preese Hall in Lancashire in 2011, where the hydraulic fracturing of shale gas test wells created low level seismicity, and shone a spotlight on the process, which is better known by its colloquial term ‘fracking’.  The public response to these small earthquakes was fast and furious – condemnation, indignation and agitation. The government response was no less fast or furious – moratorium, independent report and government assurance. One year and two reports later, the moratorium was lifted, and the UK (excluding Scotland) was ‘open for business’, with the UK government declaring (and rightly so) that the UK regulatory framework for shale gas development was one of the best in the world.

Whilst the UK government felt that the outcome was ‘crisis averted’, the public was less satisfied. Protests at Balcombe in 2013 demonstrated wide scale public consternation over ‘fracking’ in the UK. The Balcombe protest targeted the drilling of a test well (including the possible hydraulic fracturing of the well) at Lower Stumble Wood near Balcombe by Cuadrilla Resources, the same company that drilled the wells at Preese Hall in 2011 that caused low-level seismicity. Similar protests and public consternation have occurred in the Lancashire area where applications for exploration drilling at Little Plumpton and Roseacre Wood were rejected by Lancashire County Council in June 2015, citing noise and traffic impact as the grounds for planning refusal.

One major criticism levelled by those opposing shale gas extraction relates to whether the activity should be undertaken at all. After all, the UK has North Sea gas, and the shortfall of energy can be made up with renewable energy, especially wind power. The UK government energy policy includes the use of such renewable energy as part of its clean energy future, with a reduction of the use of coal. However, the UK government sees the development of shale gas resources as essential to UK energy policy, with gas from shale rocks representing a fuel that is lower in carbon, and will provide a ‘bridge’ from high carbon coal to a low carbon energy future. Therein lies the conundrum. The UK government wants to develop shale gas resources for the energy security of the UK, and the anti-fracking lobby wants to ban the development of shale gas, because of its impact on the groundwater, the local environment, and land use activities. This raises a fundamental question for UK society – how can energy security be guaranteed in the UK without the development of shale gas?

The concerns that have been raised by UK communities are very similar to those expressed in Australian rural and remote communities. Having just returned from presenting at the Northern Territory Cattlemen’s Association Conference (PDF) in Alice Springs, I have been struck by the commonalities between the issues that are raised by UK and Australian communities regarding the impact of shale gas activities.

At first blush, it would appear that the vast expanse of the Australian outback, with its cattle stations half the size of Wales, and semi-rural England have little in common. Yet on close examination there is a plethora of similarities.

Both are facing changes to the physical and social environments as shale gas exploration and production is planned for the communities.

Both have concerns that hydraulic fracturing of wells will contaminate ground water resources.

Both are concerned that such shale gas exploration and extraction activities will bring increased traffic and community impacts.

Both are concerned whether existing agricultural activities can exist alongside proposed shale gas activities.

What is striking about these concerns is the universal nature of them, whether it is rural, semi-rural, or the middle of nowhere. Although these concerns are valid, a strong legal framework is able to address such concerns. The legal frameworks of the Northern Territory and the UK are both robust, able to legitimately regulate the shale gas extraction and its impact on the land.

An important difference between the UK and Australia is the issue of use of the shale gas that is extracted. Unlike the UK, Australia is awash with offshore conventional gas resources that are yet to be developed. In the Northern Territory, which is the latest Australian jurisdiction earmarked for large-scale development of its unconventional resources, energy security is not an issue: energy needs for the Northern Territory are met by the Blacktip Gas field in the nearby Timor Sea, providing 100% of the gas needs of the Northern Territory for at least the next 25 years. Instead, the shale gas resources are being explored and targeted for development for export to overseas markets, especially the lucrative Asian energy market. It is this use of the gas that has caused consternation in Northern Territory landholders. Landholders in Queensland have raised similar concerns where coal seam gas has been extracted for export to Asia.

This disparity in the use of extracted shale gas raises an important issue for consideration. Are there circumstances where the development of shale gas resources is more acceptable than others? Such a consideration is valid in the UK, where shale gas is to be extracted to meet the energy security needs of the country, compared to the Northern Territory, where private companies will extract shale gas for sale to Asian purchasers. At present community resistance to shale gas extraction is comparable, and the end use of the gas seems to have little bearing on community resistance to shale gas extraction.

These similarities in concerns, regardless of size of community or use of the shale gas produced, demonstrate that the community consternation is aimed at the extraction process itself, not the end product.