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One of Australia's most productive industrial areas will be under the spotlight, after the federal government appointed an independent reporter to look into claims significant Aboriginal sites are being threatened by continued development.
Key points:
- A group of traditional owners mounted two challenges to development on the Burrup Peninsula in WA
- Its second challenge has been progressed and a reporter has been appointed
- Such challenges rarely result in the minister taking action, according to the Productivity Commission
The Burrup Peninsula's growing industrial zone, in the WA's Pilbara region, is the site of the country's largest liquefied natural gas producer, Woodside, the Yara Pilbara fertiliser plant, and will soon be home to the Perdaman fertiliser plant.
Last month, Federal Environment Minister Tanya Plibersek denied an emergency stop work application — lodged as a 'section 9' under federal Aboriginal heritage laws — by a group of traditional owners to prevent the Perdaman plant relocating sacred rock art.
But the government has now progressed a different application, commonly referred to as a 'section 10', to appoint a qualified person to look into claims rock art in the area is at risk, and whether it is worthy of a ministerial declaration to protect it.
Both applications were lodged by a group of traditional owners known as Save our Songlines, in accordance with the Aboriginal Torres Strait Islander Heritage Protection Act 1984 (ATSHIP Act).
"We're kind of hopeful and being positive," Save our Songlines leader, Mardudunera woman Raelene Cooper said.
"However, we do understand this is going to be a long, drawn out process … and we still have those concerns in relation to our rock art that's going to be … moved."
The rock art of Murujuga is comprised of more than a million petroglyphs, spread over 37,000 hectares.
Traditional owners say it is a place where everything is connected, and that the moving of rock carvings will damage their spiritual connection to the sites which tell the stories of their ancestors.
A spokesperson for Environment and Water Minister Tanya Plibersek said it was "standard" to appoint an independent consultant following a section 10 application.
"The consultant will take as long as is needed to prepare the report. There is no statutory time frame," the spokesperson said in a statement.
'Our preference is the rock art remain in situ'
While the reporter may take months to investigate whether industry poses a threat to the millennia-old rock art, Perdaman has already received all the necessary state approvals to begin work on the plant and can begin immediately.
Ms Cooper is a former member of the area’s official Indigenous representative body, the Murujuga Aboriginal Corporation (MAC).
MAC does not have the authority to approve or reject development in the Burrup’s industrial zone, but was consulted by Perdaman about its plans to move the rock art.
"The Circle of Elders have made it clear on numerous occasions that their preference is for rock art to remain in situ and undisturbed," MAC’s CEO Peter Jeffries previously told the government in a letter.
"However, [Perdaman] has advised on numerous occasions that this was not possible and Circle of Elders have made their recommendation to relocate these sites on that basis."
Responding to the ABC about the appointment of an independent reporter, Mr Jeffries said MAC had been contacted by the consultant and would be speaking with them as part of the process.
"MAC has a vested interest in the legislative protection of Murujuga and we hope that the current reporting process will help to clarify and strengthen some of the heritage protections we rely upon," Mr Jeffries said in a statement.
The Save our Songlines section 10 application does not take issue solely with the Perdaman plant.
The group has also expressed a number of other concerns, including the impact on the rock art of pollution from increasing industry on the Burrup Peninsula issues with access to sacred sites, as well as "visual desecration" caused by a proposed bank of solar panels connected to the Yara Pilbara Hydrogen Plant, close to where rangers conduct cultural tours.
A spokesperson for Woodside, which has been operating in the area for more than 40 years, said the company had undertaken extensive archaeological and ethnographic surveys with traditional owners.
The company said peer-reviewed research had not revealed any impact on the rock art from emissions from local gas production.
But existing research has been questioned, and the Western Australian government has established a more extensive monitoring program to assess whether pollution is degrading the ancient petroglyphs in the area.
Woodside said it supported this program.
'You can count them on one hand'
Save our Songlines remains optimistic the forthcoming report will save their sacred sites from damage as development expands on the peninsula, but history suggests the application may not lead to long term protections.
According to a report by the Productivity Commission in 2020, only seven out of 500 applications resulted in long-term declarations since the commencement of the Act in 1984.
Last year, Traditional Owners in New South Wales successfully challenged the construction of a go kart track on culturally significant grounds in Bathurst.
Native title lawyer Greg McIntyre SC — who was involved in the landmark Mabo native title case — explained it's common for the minister to appoint a reporter to investigate, but that it rarely leads to a protective order.
"There's been historical criticism of this legislation as not being effective because so few applications are actually granted."
After the destruction of the Juukan Gorge rock shelters by Rio Tinto in 2020, a parliamentary inquiry into the disaster recommended an urgent and thorough review of the ATSHIP Act, to bring it in line with current international human rights standards which include free, prior and informed consent.
Minister for Indigenous Australians Linda Burney, told the ABC in July the Labor government was committed to developing a stand-alone cultural heritage legislation, but a timeline is yet to be set.
Mr McIntyre said while current federal and state legislation is designed to avoid damage to Aboriginal heritage, it still puts "economic and resource industry interests ahead of the Aboriginal significance of the areas".
"There's still not adequate comprehensive legislation or processes and a recognition of the importance to Australia's heritage of protecting its First Nations people’s heritage," said Mr McIntyre.
"There is no legislation in Australia which requires the consent of First Nations people before heritage is damaged."
Ms Cooper said she wanted to see the Burrup Peninsula represent a turning point for Indigenous Australians.
"It's appalling that in this day and age, we're still, as First Nations people, being told to sit in the back seat, and that ain't me," she said.
"If there's any advice for all of my countrymen all over this continent, [it's that] we have a right and we have a story and we have a history here and our government needs to start acknowledging it.
"It's about equality and quality of life for everybody."
The ABC contacted Perdaman, Yara Industries and the Western Australian department of Water and Environmental regulation, but did not receive a response before deadline.