This chapter provides an overview of the environmental and heritage
protection legislation which applies to industrial development on the Burrup
The Burrup Peninsula as a place of both cultural and historical
significance is also the site of a number significant industrial complexes
including a major iron ore port, liquefied natural gas production, salt
production, and the Yara Pilbara nitrate facilities. As such, industrial
facilities on the Burrup Peninsula operate under both Western Australian and
Commonwealth legislation. This includes the Aboriginal Heritage Act 1972 (WA), the Environmental Protection Act 1986 (WA), the Environment
Protection and Biodiversity Conservation Act 1999 (Cth), and the National
Environment Protection Council Act 1994 (Cth).
State regulation and monitoring
A number of pieces of state legislation are utilised to manage and
preserve the cultural, archaeological and natural values of the Burrup
The Aboriginal Heritage Act 1972 (WA) provides for the protection
and preservation of Aboriginal heritage and culture throughout Western
Australia. Under the Aboriginal Heritage Act 1972 (WA) a number of
locations on the Burrup Peninsula have been declared Protected Places and
consent is required from the Western Australian Minister for Aboriginal Affairs
for any activity which may have negative consequences for Aboriginal heritage
The Environmental Protection Act 1986 (WA) (EP Act) requires
ministerial approval of any industrial development that is likely to have a
significant effect on the environment. The Western Australian Department of Water
and Environmental Regulation (previously known as the Department of
Environmental Regulation) is responsible for the control of pollution and for
enforcement under the EP Act. This includes responsibility for licensing,
compliance and enforcement of emissions and discharges. The Environmental Protection Authority of Western Australia (EPA WA) is
responsible for the development of environmental protection policies;
assessment of environmental impact of proposals and schemes; and overseeing the
implementation of proposals.
In 2003, the Western Australian Government entered into the Burrup and
Maitland Industrial Estates Agreement with three Aboriginal groups: the
Narluma-Yindjibarndi, the Yaburara-Mardudhunera, and the Wong-Goo-Tt-Oo. This
agreement allowed the WA Government to compulsorily acquire native title rights
and interests in the area of the Burrup Peninsula, and some areas of land near
Karratha. The agreement allowed for industrial development across the southern
area of the Burrup Peninsula, created a conservation estate (which later became
the Murujuga National Park) and ensured the protection of Aboriginal heritage.
In 2003, the Burrup Maitland Industrial Estates Agreement Additional
Deed committed the WA Government to organising and funding a minimum four-year
study into the effects of industrial emissions on rock art within and near the
industrial estate established on the Burrup Peninsula. This included:
- the monitoring of ambient concentrations of air pollutants and
microclimate and deposition undertaken by CSIRO Atmospheric Research; and
the artificial fumigation of rock surfaces and fieldwork on rock
surface colour undertaken by CSIRO Manufacturing and Infrastructure Technology.
In 2009, following the completion of these studies, the Burrup Rock Art
Monitoring Management Committee (BRAMMC) recommended that the study of ambient air
quality and rock microbiology monitoring be suspended and only recommenced if
warranted by a major increase in emissions, or if new evidence makes further
In 2013, the Western Australian Government established the Murujuga
National Park which covers the Northern Burrup Peninsula. The focus of the
Murujuga National Park Management Plan (2013) is to ensure protection and
awareness of the cultural and natural values of area. Increased protection of
the rock art is also achieved through the application of provisions of the Conservation
and Land Management Act 1984 (WA) (CALM Act).
The management of the Murujuga National Park is administered by the
Western Australian Department of Biodiversity, Conservation and Attractions
(DBCA) in accordance with policy directions provided by the Murujuga Park
Council (MPC). The MPC is comprised of representatives from the Murujuga
Aboriginal Corporation (MAC), the DBCA, and a representative appointed by the Minister
for Aboriginal Affairs. The Rangers of the Murujuga Land and Sea Unit (MLSU)
conduct the practical management of park alongside DBCA staff.
Burrup rock art monitoring program
As noted above, monitoring of the rock art was commissioned and reviewed
by BRAMMC. The Western Australian Government established the BRAMMC in 2002 in
response to concerns about possible adverse impacts on the rock art from
industrial air emissions.
The BRAMMC commissioned a number of investigations to identify whether
industrial emissions were having or could have adverse effects on the rock art
of the Burrup Peninsula. A number of studies were initiated including:
- annual independent monitoring of colour change and spectral
mineralogy of rock art, conducted by CSIRO;
- air quality monitoring conducted in 2004–2005 and 2007–2008 by
CSIRO to assess the likelihood that air pollution from industrial activities in
the area would damage rock art;
- air dispersion modelling atmospheric pollutants occurred in 2009
to provide a better understanding of the potential for emissions from local
industry to have an impact on rock art;
- a study conducted between 2004–2008 by Murdoch University into
the possibility that microbial activity stimulated by air pollutants could
accelerate surface corrosion;
- accelerated erosion tests conducted between 2004–2007 by CSIRO
utilising fumigation chambers to investigate the impact of pollutant scenarios
and the role of dust in rock surface modification.
The BRAMMC provided the results of CSIRO's and other studies to the
Western Australian Minister for Environment in 2009. It concluded that 'there
was no scientific evidence that indicates measurable impacts to rock art from
industrial emissions on the Burrup Peninsula'.
Based on the recommendations of the BRAMMC, the Western Australian
Minister for Environment established the Burrup Rock Art Technical Working
Group (BRATWG) in September 2010. The BRATWG was established as an independent
technical body tasked with managing and coordinating the continued monitoring
of the rock art of the Burrup Peninsula. It was funded by existing industries
on the Burrup Peninsula with Yara Pilbara being a major financial contributor
since Yara assumed control of the Ammonia Plant in 2012.
In 2016, the BRATWG completed its five year term of engagement, and
provided a draft report to the Western Australian Minister for Environment.
According to Yara Pilbara, the draft report:
... concluded, consistent with the earlier findings of BRAMMC,
that there is no scientific evidence that indicates any measurable impact of
industrial emissions on the rock art on the Burrup over the period 2004 to
2014. The report also contains a recommendation that the monitoring of rock art
continue on an annual basis to provide an early warning of any possible impacts
to rock art from industrial emissions and recommended that the function of
BRATWG continue for another five year term.
Yara Pilbara submitted that it supports the recommendations contained in
the draft report and the 'ongoing operation of BRATWG as an effective
independent group to facilitate the monitoring and analysis efforts'.
The Chamber of Minerals and Energy of Western Australia similarly stated
that it supports 'the continuation of BRATWG in its role of overseeing the
Burrup rock art monitoring program to assist in the protection and preservation
of petroglyphs on the Burrup Peninsula'.
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)
provides a legal framework for the management and protection of nationally
important, flora, fauna, ecological communities and heritage places which are
defined in the Act as matters of national environmental significance. Matters
of national environmental significance relating to cultural heritage include
National Heritage Places.
The principles of ecologically sustainable development, as established
in section 3A of the EPBC Act, are required to be followed in relation to areas
listed as National Heritage Places. These principles are as follows:
- decision-making processes should effectively integrate both long-term
and short-term economic, environmental, social and equitable considerations;
- if there are threats of serious or irreversible damage, lack of full
scientific certainty should not be used as a reason for postponing measures to
prevent environmental degradation;
- the principle of intergenerational equity—that the present generation
should ensure the health, diversity and productivity of the environment is
maintained or enhanced for the benefit of future generations;
the conservation of biological diversity and ecological integrity should
be a fundamental consideration in decision-making; and
- improved valuation, pricing and incentive mechanisms should be promoted.
Under the EPBC Act, the Department of the Environment and Energy has
responsibility for listing new National Heritage Places, and regulating the
impact of development actions that are likely to have a significant impact on
National Heritage Places. The Minister for the Environment and Energy, on behalf of the Commonwealth,
under section 45 of the EPBC Act, has a bilateral agreement with the State of
Western Australia in relation to accreditation of the state's Environmental
Impact Assessment processes.
In 2007, the Dampier Archipelago, including the Burrup Peninsula, was
added to the Heritage List. The Australian Heritage Council found that the
Dampier Archipelago met five of the eight criteria for National Heritage
Listing under the EPBC Act. These criteria are:
the place has outstanding heritage value to the nation because of
the place's importance in the course, or pattern, of Australia's natural or
- the place has outstanding heritage value to the nation because of
the place's possession of uncommon, rare or endangered aspects of Australia's
natural or cultural history;
- the place has outstanding heritage value to the nation because of
the place's potential to yield information that will contribute to an
understanding of Australia's natural or cultural history;
- the place has outstanding heritage value to the nation because of
the place's importance in demonstrating the principal characteristics of:
- a class of Australia's natural or cultural places; or
- a class of Australia's natural or cultural environments; and
- the place has outstanding heritage value to the nation because of
the place's importance in demonstrating a high degree of creative or technical
achievement at a particular period.
The listing of the Dampier Archipelago 'recognised the extraordinary
extent, diversity and significance of petroglyphs, standing stones and circular
stone arrangements of the place'.
At the time of listing, EPBC Act Conservation Agreements were signed by
the then Minister for the Environment and Water Resources, the Hon Malcolm
Turnbull, with Woodside Energy Ltd, Hamersley Iron Pty Ltd, and Dampier Salt
Ltd (Rio Tinto). Under the Conservation Agreements, these companies provide
funding for research, management and monitoring of the National Heritage values
of the place. The Murujuga Rangers are supported by the Conservation Agreements
to manage the National Heritage values in cooperation with the Australian and
Western Australian governments.
As a consequence of its listing as a National Heritage Place, the
provisions of the EPBC Act and the National Environment Protection Council
Act 1994 apply to developments on the Burrup Peninsula. However, the
application of the EPBC Act is limited to actions commenced after 16 July 2000
(the commencement date of the EPBC Act). Action which commenced prior to that
date and was either legally authorised, or is a lawful continuation of a use of
land, the sea or the sea bed that commenced prior
to July 2000 is exempt from the assessment and approval provisions of the EPBC
Act. The Department of the Environment and Energy (the department) stated that
much of the industrial development on the Burrup Peninsula is subject to the
exemption provisions of the EPBC.
EPBC Act assessment of the liquid
In 2001, the proposed liquid ammonia plant was referred to the
Commonwealth for a decision under the EPBC Act as to whether it required
approval. The Commonwealth Minister decided that the proposal was not a controlled
action (i.e. it was not likely to have a significant impact on matters of
national environmental significance).
At the time of this decision, national heritage had not been added to
the EPBC Act as a matter of national environmental significance. The
provisions of the EPBC Act which relate to national heritage were added in
2003, and commenced operation in 2004. Similarly, the listing of the Dampier
Archipelago (including Burrup Peninsula) as a National Heritage Place did not
occur until 2007. As neither the EPBC Act nor the heritage listing operate
retrospectively, existing activities such as the liquid ammonia plant are
permitted to continue unless there is a significant alteration to the nature of
EPBC assessment and approval of the
In 2008, the environmental approvals process commenced for the
construction and operation of the TANPF. The Commonwealth Minister determined
that the proposal for the construction of the TANPF was a controlled action
under the EPBC Act for likely impacts to National Heritage places, listed
threatened species and listed migratory species. Pursuant to the bilateral
agreement between the Commonwealth and the State of Western Australia, the
proposal was referred for assessment by the EPA WA. This assessment process included
an eight week public review period.
The EPA WA provided a report and recommendations to the Commonwealth
Minister. This report stated that it was considered that it:
...is unlikely that the
relatively small quantities of NO2 [nitrogen dioxide] and NH3 [ammonia] that would be emitted from the TANPF would have a significant impact
on rock art in the surrounding areas.
The EPA WA based its decision on the 'results obtained from the Pluto
LNG Development Cumulative Air Quality Study, the CSIRO study on the impact of
industrial air emissions on rock art located on the Burrup Peninsula, and the
Burrup Peninsula Air Pollution Study: Report for 2004/2005 and 2007/2008'.
The EPA WA also expressed the view that
...the proposal could be managed to meet the EPA's
environmental objectives and recommended conditions including what it described
as "the adoption and implementation of best practice pollution control
technology to minimise ammonia emissions and particulate emissions from the drilling
plant common stack".
The WA Government approved the construction of the TANPF on
11 July 2011.
Twenty seven environmental conditions were set by the Western Australian
Government under relevant state legislation. These include the requirement to prepare
and implement an ambient air monitoring programme, and the requirement to
submit an annual Compliance Assessment Report.
The Commonwealth Minister for the Environment approved the proposed
action, with 15 conditions, on 14 September 2011. Conditions 7, 8, 9 and
10 relate to the protection of the Dampier Archipelago (including the Burrup
Peninsula) National Heritage place.
Condition 7 required the submission and implementation of the following
- Construction Environment Management Plan—approved by a delegate
of the Minister for the Environment in November 2012;
- Operational Environment Management Plan—currently being
considered by the department and relates to air quality and dust, water
quality, erosion control and storm water, waste and traffic. The plant cannot
commence operation until the plan is approved;
- Aboriginal Heritage Management Plan—approved by the department in
Hazardous Materials Management Plan—approved by the department in
November 2012; and
- Emergency Response Management Plan—approved by the department in
Condition 8 required avoidance measures relating to the rock art sites,
including fencing, signage and personnel access to the National Heritage place.
The department conducted a site inspection in September 2016 and 'verified that
the management measures required under condition 8 were being implemented'.
Condition 9 required air quality monitoring at three sites used in the
Burrup Rock Art Monitoring Program. Emissions of ammonia, nitrogen oxides,
sulphur oxides and total suspended particles would have to be monitored, and
form the baseline of air quality data. The baseline air quality monitoring was to
be reported to the department by 21 February 2017 with annual air
quality monitoring at the rock art sites occurring for at least five years
after operations commence.
Condition 10 required spectral mineralogy monitoring of rock art sites
adjacent to the site, consistent with the Burrup Rock Art Monitoring Program.
Monitoring must continue for at least five years after commencement of
operations and until the approval holder has demonstrated that operation of the
facility is not having an unacceptable impacts on the rock art sites. The
approval holder is also required to provide results to the department and to
publish them on the internet.
Condition 10 also required the engagement of a heritage monitor or other
suitably qualified person to survey rock art sites within a two kilometre
radius of the project. This heritage monitor is required to provide advice on
any changes to the appearance, or cultural value of rock art sites within the
Issue of licence to operate
Following the decision by the Commonwealth Minister, Yara Pilbara
obtained a licence to operate under the EP Act (WA). An application to amend
the licence was advertised on 11 July 2016.
Variation of Commonwealth
Following application by Yara Pilbara, the Commonwealth's environmental
approval conditions were varied on 18 December 2013, which deleted
condition 8(d) and amended conditions 10 and 11.
Condition 8(d), which was deleted, referred to the annual survey of rock
art sites within a 2 kilometre radius of the project site by a heritage monitor
or other suitably qualified person and the reporting requirements of that
New condition 10(c) included the monitoring requirements for additional
monitoring of rock art sites in a manner that is consistent with the Burrup
Rock Art Monitoring Program. Six requirements were set for this condition
including that the monitoring be undertaken at least annually and that the
Murujuga Aboriginal Corporation be engaged in the planning and reporting
associated with the annual survey of rock art sites required under condition
Condition 11 was amended to require the proponent to notify the department
within 72 hours of any results of the state government managed monitoring
program or additional monitoring, as required under condition 10(c) that show
there is evidence of changes in the surface of rock art motif or surrounding
A further variation to the Commonwealth's approval conditions was
approved on 10 February 2014. Condition 10(c) (iv) was amended, which
changed the timing of the first rock art monitoring event from within 12 months
of the commencement of construction to 16 months.
The Yara Pilbara compliance report of 2016 stated that Yara Pilbara would
seek a further variation regarding assessment of rock art.
Directed variation to approval
On 12 September 2017, the Department of the Environment and Energy (the
department) issued a directed variation to the approval for the TANPF. A
directed variation to approval conditions to require stricter regulatory
controls of an action may be put in place for 'repetitive non compliances,
where a non-compliance has led to environmental harm or where an approval holder
does not engage with the Department in relation to a breach of approval
The directed variation replaced 11 conditions, added 7 further
conditions and replaced a number of definitions. The directed variation
includes measures that (amongst others):
impose new reporting requirements (Condition 3, Condition 3A and
- impose new air quality monitoring and reporting requirements (Condition
9A and Condition 9B); and
require that the approval holder ensure that there is no
measurable impact from air pollution to any rock art sites within two
kilometres, for the life of the approval (Condition 11). And further, if the
Minister is not satisfied that this is being met, then a Rock Art Impact
Mitigation Review (RAIMR) must be submitted for approval by the Minister
(Condition 11A). If an RAIMR is not submitted to the satisfaction of the
Minister, or Condition 11 is not met, then the Minister may order a reduction
in air emissions for a specified period of time (Condition 11B).
Ms Monica Collins, Chief Compliance Officer, Department of the
Environment and Energy, told the committee that the variation was issued
because the department had:
...found noncompliance with the full set of conditions in relation
to the air quality monitoring in that they [Yara Pilbara] didn't have the full
set of monitoring data for the total suspended particulates.
Ms Collins explained that the intent of the directed variation was 'to
make very clear the need for ongoing monitoring and, specifically, what
parameters they were required to monitor'. Ms Collins also told the committee
that the department was 'making it very clear that the purpose of the license
is to ensure the protection of the rock art in the national heritage place'.
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