Labor Senators' additional comments
1.1
Labor Senators acknowledge that Murujuga, also known as the Burrup
Peninsula and Dampier Archipelago, is home to one of the largest and the oldest
collections of rock art in the world.
1.2
The petroglyphs document human presence in the area over an estimated
45,000 year timespan—the longest continuous production of rock art in the world.
1.3
It is without doubt that the petroglyphs are of immense and
irreplaceable cultural and spiritual significance to Aboriginal people, and are
of equally immense national and international archaeological and heritage
value.
1.4
Labor Senators sincerely thank the Murujuga Aboriginal Corporation for
their participation in this inquiry. The Murujuga Aboriginal Corporation
represents the five traditional owner groups: the Ngarluma people, the
Mardudhunera people, the Yaburara people, the Yindjibarndi people, and the
Wong-Goo-Tt-Oo people. We pay respect to the traditional owners and custodians
of Murujuga, their continuing connection to this land, and their right to a
place of honour in our constitution and a full and equal share in our nation's
future. Community control and direct involvement of Aboriginal and Torres
Strait Islander peoples in the planning and delivery of programs and services
is vital.
1.5
Labor is committed to building a relationship where Aboriginal and
Torres Strait Islander peoples and communities are the architects of their
place in Australia and are equal partners with government in the development
and implementation of policies that affect their way of life and livelihoods.
Land and water are the basis of Aboriginal and Torres Strait Islander
spirituality, law, culture, economy and wellbeing. Native Title and land rights
are both symbols of social justice and a source of valuable economic
opportunity for Aboriginal and Torres Strait Islander Australians.
1.6
Labor believes in the absolute necessity of free, prior and informed
consent for Aboriginal and Torres Strait Islander peoples and communities in
resource management and conservation decisions. This right is guaranteed under
the UN Declaration of the Rights of Indigenous Peoples, which Australia has
ratified. Any decisions which pre-suppose an outcome of a community-led process
do nothing to protect precious sites and set back Indigenous development. Labor
supports the investigation and nomination of areas suitable for future listing
in cooperation with traditional owners, state and territory governments and
other stakeholders, including industry.
1.7
Labor Senators thank all organisations and individuals that made
submissions to this inquiry and gave evidence at hearings, and the Secretariat
for their ongoing research and administrative support.
Indigenous-led progress
1.8
Labor Senators note with concern the evidence from the Murujuga Aboriginal
Corporation that they have been 'left out a lot regarding the Burrup'.[1]
This is with respect to the joint management plan of the Murujuga National Park
with the Western Australian Government, including no consultation on World
Heritage listing with the current board, no consultation or advice on alleged
or potential damage to the petroglyphs from vandalism or pollution, and feeling
like a 'subcontractor' in terms of reporting requirements.[2]
Further, unlike other WA national park rangers, the Murujuga rangers are
employed by the Murujuga Aboriginal Corporation and hold no enforcement powers.
1.9
Labor Senators consider that as an immediate priority, the Western
Australian Government and the Australian Governments must formally consult with
the Murujuga Aboriginal Corporation and Murujuga Circle of Elders.
Recommendation 1
1.10
Labor Senators recommend that prior to any future steps in securing
protection for Murujuga, or undertaking further decisions relating to resource
activities in the region, the Western Australian Government and Australian
Government must formally consult with the Murujuga Aboriginal Corporation and
Murujuga Circle of Elders, which represent the five traditional owner groups in
the region. Such consultation should be conducted on terms set by the Murujuga
Aboriginal Corporation and Murujuga Circle of Elders.
Indigenous-led World Heritage Listing
1.11
Labor Senators note with concern the evidence from the Murujuga
Aboriginal Corporation that none of the current board and only a small number
of elders participated in discussions on World Heritage listing eight to ten
years ago. Further, we note concerns from the Murujuga Aboriginal Corporation that
World Heritage listing may lead to changes or a reduction in the ability for
the Murujuga Aboriginal Corporation to manage the area.
1.12
Labor Senators note that the Australian Heritage Council reported in
2011 that the rock art collection represents a masterpiece of human creative
genius and is one of the most exciting and significant collections of rock
engravings in the world.
1.13
Labor Senators urge that any consideration of World Heritage listing for
Murujuga is led by the traditional owners of Murujuga.
Recommendation 2
1.14
Labor Senators recommend that, if agreed by the Murujuga Aboriginal
Corporation, it be provided funding to consult on the potential to seek listing
of Murujuga on Australia's Tentative World Heritage List. If a listing is
agreed, that the Murujuga Aboriginal Corporation be assisted by the Western Australian
and Australian Governments to prepare a tentative listing.
Recommendation 3
1.15
If a Tentative listing is agreed by traditional owners, and Murujuga is
placed on the Tentative World Heritage list, Labor Senators recommend that the
Australian Government and the Western Australian Government work together to
resource traditional owners to prepare a nomination of Murujuga for World
Heritage listing.
Indigenous ranger support
1.16
Labor Senators note with concern the evidence from the Murujuga
Aboriginal Corporation that unlike other WA national park rangers, the Murujuga
Indigenous Rangers hold no enforcement powers and must refer matters to the Department
of Parks and Wildlife. These Indigenous Rangers 'can tell people what they
should and should not do, but they simply have no power to move them on, to make
them cease or to issue fines or whatever'.[3]
The Murujuga Aboriginal Corporation officials continued:
Mr Bonney: We have got traditional owners who are rangers on
their own country seeing people do the wrong thing, and they have no power to
move them off their own country. [4]
Ms Cooper: Also, it does not protect our rangers if there is
any kind of conflict with individuals who may be partying out on the beach or
whatnot. It can get quite horrific. Things can happen. It is something that we
need to protect them as well as individuals who visit the Burrup.[5]
1.17
Ms Cooper from the Murujuga Aboriginal Corporation stated that 'one of
our worst fears is the graffiti'. Ms Cooper continued:
Our rangers are out patrolling all the time and they see a
lot more and they report and input into a data system that we have set up.
Basically, everything is recorded through Murujuga from Murujuga's point of
view. We are not experts in chemicals and whatever but it would be fantastic to
have that information and then see how we can deal with any potential hazards
that are affecting our rock art.[6]
1.18
Labor Senators recognise the vital work of the Murujuga Indigenous
Rangers in managing and protecting the Murujuga. We urge the Western Australian
Government and Australian Government to ensure the Murujuga Indigenous Rangers
have the resources and enforcement powers to best manage and protect the
Murujuga.
Recommendation 4
1.19
Labor Senators note the vital work that is undertaken by the Murujuga
Indigenous Rangers and the importance of ensuring that the area is protected
from physical destruction and vandalism. Labor Senators recommend that the
Murujuga Indigenous Ranger program be given appropriate funding by both the
Australian Government and the Western Australian Government. In particular, the
Murujuga Rangers must be granted the power to undertake the same enforcement
activities as state-employed rangers and must be engaged by the state and Commonwealth
governments on any monitoring and research work.
Tourism
1.20
Labor Senators note the Murujuga Aboriginal Corporation and the Western
Australian Government are undertaking a comprehensive feasibility study, which
commenced in early 2014, for a proposal to site a multi-purpose Murujuga Living
Knowledge Centre in or near the park.[7]
1.21
The Murujuga Aboriginal Corporation expressed an interest in locating
the Living Knowledge Centre at Conzinc Bay at the northern end of the Burrup
Peninsula.[8]
Conzinc Bay is a preferred site as there is no industrial development near
Conzinc Bay, and a section of land identified for future industrial use could
house the Centre and be incorporated into the national park. The Murujuga
Aboriginal Corporation has requested that additional costs related to
relocation to Conzinc Bay be met by the Western Australian Government.
1.22
The Murujuga Aboriginal Corporation acknowledged that this proposal
would require road access to Conzinc Bay. It was argued that improved road
access is likely to also benefit the environment through improved controls on
access:
The core reason for us to relocate to that site is that it
gives us a better opportunity to protect the environment and to control the
traffic on the road. All of the visitors that come to the park must come to the
cultural centre and be made culturally aware of the environment they are
visiting, which we hope will mitigate the damage and prevent the desecration
that occurred in the past.[9]
Part of the road design and management will be that there is
one road in and one road out, and all of the side tracks will be blocked off.
That better protects the country as well. That is part of the plan. We are
there fundamentally for the protection of that environment, and that is what
this thing will do.[10]
1.23
The City of Karratha costed the road upgrade at $6 million and expressed
a willingness to contribute financially to the upgrade.[11]
Recommendation 5
1.24
Labor Senators commend the Murujuga Aboriginal Corporation, the Western
Australian Government and the City of Karratha, for their collaborative efforts
to improve tourism and road infrastructure at Murujuga. Labor Senators
recommend that the Western Australian Government should make a significant
contribution to the Living Knowledge Centre and road upgrade to Conzinc Bay as
well as continue to improve support to the Murujuga Aboriginal Corporation for
the ongoing development of tourism on the Burrup Peninsula.
Monitoring
1.25
Industry on the Burrup Peninsula is subject to regulation by both state
and Commonwealth legislative frameworks. As such, the TANPF was approved with a
number of conditions under the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act). These conditions include the requirement
for an air monitoring program, and a spectral mineralogy program to be
implemented.
1.26
The committee received evidence which indicated major flaws in the work
undertaken by CSIRO on behalf of the Western Australian Government. This work
has been used to establish approval conditions for the TANPF, and by proponents
who argue that industry on the Burrup Peninsula has not resulted in damage to
the rock art collections.
1.27
This evidence included that:
- the 2007 fumigation studies conducted by CSIRO suffered poor
experiment design through an inadequate selection of rock samples, and
inadequate replication;
- the 2008 air pollution study incorrectly used a study by Cinderby
et al to conclude that the critical load for the Burrup rocks would be 200
meq/m2/year;
- the analysis of rock art monitoring conducted between 2004–2014
did not include adequate statistical analysis, and further the measurements
taken were unreliable due to the equipment used.
1.28
Professor John Black raised these concerns with both CSIRO and the
Western Australian Government and proposed improvements which could be made to
the work of CSIRO. As a result, in 2016 the Western Australian Government
engaged an independent reviewer, Data Analysis Australia (DAA), to review the
CSIRO monitoring reports and the work of Professor Black. DAA found that:
- the statistical methods proposed by Professor Black represented a
substantial change in the effective monitoring of the rock art sites, and the
CSIRO reports demonstrated a number of inadequacies such as a lack of
statistical analysis; and
- there were significant problems with cross-calibration between
measuring instruments, inconsistent error-prone data management, and clear
errors in the CSIRO data. As such, the CSIRO data collected should be archived
and DAA concluded that it is not appropriate for regulators to make any
decisions based on that data.[12]
1.29
In 2017, DAA was again engaged to review the draft Burrup Peninsula
Aboriginal Petroglyphs: Colour Change & Spectral Mineralogy 2004–2016 CSIRO
monitoring report. It found that four of the recommendations made in 2016 to
improve the monitoring program had not been implemented, one recommendation had
been partially implemented and one recommendation had been largely implemented.
DAA acknowledged that while the 2017 report demonstrated substantial efforts on
the part of CSIRO to improve the reporting of data collection and to present
better analysis, more needed to be done. It concluded that the CSIRO report was
unable to dispel reasonable concerns about the impact of industry on the rock
art.
1.30
As a result of the 2017 DAA review, CSIRO made a number of changes to
the Burrup Peninsula Aboriginal Petroglyphs: Colour Change & Spectral
Mineralogy 2004-2016 report. CSIRO noted that this final report supersedes
all previous results published by CSIRO for the monitoring program and that it
implemented all the recommendations of the 2016 and 2017 DAA reviews.
1.31
The Burrup Peninsula Aboriginal Petroglyphs: Colour Change &
Spectral Mineralogy 2004–2016 concluded that there has been a small but
statistically significant change to the rocks in some dimensions of colour.
However, the committee received evidence that this conclusion seeks to diminish
the value of these colour changes. It was argued that a colour change of approximately
13 per cent over 13 years is a major change which should be of concern in
the preservation of rock art.
1.32
Professor Black recently contacted the committee after examining the
Western Australian Government's Commissioning Report for the Yara Pilbara
Nitrates Pty Ltd Technical Ammonium Nitrate Production Facility with a
colleague, Dr Ilona Box. Professor Black and Dr Box concluded that there have
been numerous large emissions of nitrogen dioxide that are a serious risk to
human health as well contributing to the formation of nitric acid that will
increase the speed the rock art is being destroyed.
1.33
Labor Senators thank Professor John Black and his colleagues for
undertaking such comprehensive reviews of the CSIRO reports, and for continuing
to raise their concerns with both CSIRO and the Western Australian Government.
1.34
Labor Senators are of the view that the development and implementation
of a new monitoring program should be a priority for the Western Australian
Government.
1.35
In September 2017, the Western Australian Government released the Draft
Burrup Rock Art Strategy which proposes to develop a revised method for the
collection and analysis of data that incorporates the recommendations of the
DAA review. These proposals should be implemented as soon as possible.
Recommendation 6
1.36
Labor Senators recommend the Western Australian Government prioritise
the development and implementation of a new, fully funded independent
monitoring program.
Recommendation 7
1.37
Labor Senators recommend that the Western Australian Government
implement, as soon as possible, proposals for further monitoring included in
the Draft Burrup Rock Art Strategy.
Compliance
1.38
The committee received evidence that Yara Pilbara has had a number of
incidents of non-compliance with EPBC Act approval conditions. First, it failed
to self-refer the TANPF proposal for assessment under the EPBC Act, and it has
subsequently failed to comply with a number of its approval conditions.
1.39
The incidents of non-compliance with approval conditions include late
production of annual compliance reports and rock art monitoring reports. The
Department of the Environment and Energy (the department) told the committee
that it is working with Yara Pilbara to improve the capacity of Yara Pilbara to
comply with its approval conditions.
1.40
In September 2017, the department also issued a directed variation to
the approval for the TANPF in response to non-compliance. This variation
imposed new reporting requirements, new air quality monitoring and reporting
requirements, and established a requirement that the approval holder must
ensure that no measurable impacts from air pollution must occur within two
kilometres of the site, for the life of the approval.
1.41
Labor Senators consider such incidents of non-compliance as unacceptable,
particularly in an environment where the consequences may be catastrophic to
the irreplaceable rock art collection. The Department of the Environment and
Energy must ensure that Yara Pilbara's compliance is improved.
Recommendation 8
1.42
Labor Senators recommend that the Department of Environment and Energy
actively work with Yara Pilbara to ensure its compliance is improved.
1.43
Some submitters raised concerns that a heritage monitor should have been
engaged to conduct a comprehensive survey of all rock art sites in a two
kilometre radius of the Yara Pilbara site. However, Yara Pilbara only monitors
six petroglyph sites in its two kilometre radius and has not conducted a survey
to identify all the sites that exist in this area. Submitters argued that this
sample of sites is inadequate.
1.44
However, both Yara Pilbara and the Department of the Environment and
Energy asserted that the approval conditions only required the monitoring of
six sites and that there had been no instance of non-compliance in this regard.
1.45
Labor Senators consider that that such a small sample is inadequate.
1.46
As the approval conditions were set by the Department of the Environment
and Energy, the Australian Government should engage a Heritage Monitor to
conduct a comprehensive survey to identify all rock art sites in the two
kilometre radius which may be affected by emissions.
Recommendation 9
1.47
Labor Senators recommend that the Australian Government engage a
Heritage Monitor to conduct a comprehensive survey to identify all rock art
sites in a two kilometre radius from the site, which may be affected by
emissions.
1.48
The committee also received evidence that Yara Pilbara has failed to
comply with air quality monitoring requirements as established by approval
conditions granted by the Western Australian Government.
1.49
In particular, submitters argued that Yara Pilbara compliance reports
demonstrate non-compliance with the requirement to measure PM10 particles, NH3,
NOx, and SOx at five sites, including three rock art
sites. There are instances in the report where 'No Data' is recorded, and
measurements of negative amounts of PM10 particles which are arguably
impossible.
1.50
Yara Pilbara acknowledged that there have been periods of time where its
air quality monitoring equipment has been unavailable due to breaking down or
maintenance work. Yara Pilbara also acknowledged that it has engaged an air
quality monitoring consultant to conduct a review of all its air quality
monitoring data and baseline data sets.
1.51
Labor Senators are concerned that Yara Pilbara has failed to comply with
the approval conditions set by the Western Australian Government.
Recommendation 10
1.52
Labor Senators recommend that the Western Australian Government promptly
review and assess Yara Pilbara's compliance with its approval conditions and
against best practice, and take any necessary action to improve compliance.
Land-based emissions
1.53
Some submitters expressed concern that the projected increase in
emissions from the TANPF would contribute to the destruction of the rock art of
the Burrup Peninsula and argued that Yara Pilbara's proposed outputs of airborne
ammonium nitrate particles at PM10 size exceed limits which are
known to be toxic to humans.
1.54
However, Yara Pilbara responded to such concerns by noting that its
emissions modelling was assessed by the Western Australian Department of
Environmental Regulation during the TAN Plant Works Approval application, and
its PM10 emissions were determined to be insignificant. Further, its
carbon monoxide emissions were assessed twice by the Western Australian
Department of Environmental Regulation and the Environmental Protection Authority
Western Australia. It was found that the worst-case predicted ground level
carbon monoxide concentrations from the operation of the TANPF were less than
0.2 per cent of the National Environmental Protection Measure and Impact
Statement for Ambient Air Quality.
1.55
Labor Senators recognise the concern and the contentious evidence
provided by both sides of the debate. Labor Senators consider it appropriate
for the Western Australian Government to examine ways to work with industry and
use environmental approvals to reduce the emission load on the Burrup Peninsula.
Recommendation 11
1.56
Labor Senators recommend that the Western Australian Government
investigate and implement measures to ensure that the emission load on the
Burrup Peninsula is reduced.
Shipping emissions
1.57
Labor Senators suggest that caution should be exercised in comparing
operations of commercial freight and passenger cruise ships.
1.58
Nevertheless, given the risks to the rock art from sulphur dioxide,
Labor Senators consider it appropriate to monitor emission loads at the Port of
Dampier and, if necessary, investigate reducing sulphur emissions.
Recommendation 12
1.59
Labor Senators recommend the Western Australian Government monitor the
Port of Dampier to determine if emissions from ships are impacting the values
of the surrounding area. If a problem is identified, Labor Senators recommend
that a transition to use of low sulphur content fuel or an approved means of
achieving required emissions reductions is investigated.
Responsible development
1.60
Successive Western Australian governments have pursued a long-term
vision of transforming the Burrup Peninsula into the largest industrial
precinct in the southern hemisphere, attracting foreign investment and
royalties. As such, the Burrup Strategic Industrial Area (Burrup SIA) was
developed to provide an area for industry in close proximity to gas, port and
other key infrastructure.
1.61
Some submitters argued that further development on the Burrup Peninsula
will damage the rock art. However, this was refuted by other submitters.
1.62
Labor Senators consider that any further industrial development of the
Burrup SIA only be pursued by the Western Australian Government under strict
environmental conditions.
Recommendation 13
1.63
Labor Senators recommend that further industrial development be approved
in the Burrup Peninsula only under strict environmental conditions.
Cumulative effects
1.64
The committee received evidence that under the EPBC Act, the ability for
the Minister or their delegate to consider cumulative effects when undertaking
an approval assessment is limited.
1.65
Submitters expressed concern that the cumulative effects of existing
industry on the Burrup Peninsula may not have been considered during the EPBC
approval process. Further, submitters argued that without the release of the
Minister's statement of reasons, it is unclear whether or to what extent the
cumulative effects are considered.
1.66
The Department of the Environment and Energy and Yara Pilbara provided
evidence that the cumulative effects of existing industry on the Burrup
Peninsula were considered during the approval process for the TANPF. The
Department of the Environment and Energy also provided evidence that any future
approvals for development on the Burrup would also include a consideration of
the cumulative effects on matters of national significance.
1.67
Labor Senators consider that the improved monitoring programs outlined
at Recommendations 6 and 7 will better inform the Minister for the Environment
and Energy of cumulative effects.
Recommendation 14
1.68
Labor Senators recommend that the Minister for the Environment and
Energy use new data and information provided by improved monitoring to consider
the cumulative effects when approving decisions relating to Murujuga.
Senator Patrick Dodson
Senator for Western Australia
Senator Sue Lines
Senator Western Australia
Senator Anne Urquhart
Senator for Tasmania
Senator Anthony Chisholm
Senator for Queensland
Senator the Hon Kristina Keneally
Senator for New South Wales
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