Question On Notice No. 574 asked in the Legislative Council on 15 March 2022 by Hon Dr Brad Pettitt
Question Directed to the: Minister for Emergency Services representing the Minister for Aboriginal Affairs
Parliament: 41 Session: 1
Question
I refer to the section 18 application made by Perdaman Chemicals Pty Ltd to disturb sites in the development envelope of its proposed Urea plant, adjacent to the Murujuga National Heritage Listed Area and within the potential boundary of the UNESCO Tentative World Heritage List listed Murujuga Cultural Landscape site. According to advice received from the Director of Aboriginal Heritage Operations of the Department of Planning, Lands and Heritage, this section 18 application was considered by the Aboriginal Cultural Materials Committee (ACMC) in April 2021 and approved by the Minister on 27 January 2021, and is thus relevant to the passing of the Aboriginal Cultural Heritage Act 2021 and the findings of the Federal Jukkan Gorge Inquiry. I ask the Minister:
(a) can the Minister confirm that the ACMC assessed the Perdaman section 18 application in April 2021;
(b) will the Minister state what the ACMC’s recommendation to the Minister was in relation to the Perdaman application;
(c) if no to (b), why not;
(d) if yes to (b), will the Minister table that advice;
(e) if no to (d), why not;
(f) can the Minister confirm whether they provided ministerial approval for the Perdaman section 18 application on 27 January 2022;
(g) will the Minister table a copy of the ministerial approval and conditions;
(h) if no to (g), why not;
(i) in making their decision, did the Minister consider the impact of increased industrial emissions on the surrounding rock art and take into account the precautionary principle;
(j) if no to (i), why not;
(k) if yes to (i), in what way was this impact considered;
(l) is the Minister aware that more than 10 Aboriginal cultural heritage sites including a stone arrangement and petroglyph were identified subsequent to the ACMC decision on April 2021;
(m) if no to (l), why not;
(n) if yes to (l), on what date did the Minister become aware of these additional sites which were not identified in the Perdaman section 18 application;
(o) in arriving at their decision on the Perdaman section 18 application, did the Minister consider any of the additional heritage sites identified after the ACMC considered the original Perdaman section 18 report;
(p) if the ACMC and the Minister did not consider these additional heritage sites, is the ministerial approval still valid, and, if so, on what basis;
(q) if no to (p), will the Minister ask the ACMC to review the advice provided further advice to the Minister;
(r) if no to (q), why not;
(s) is it the case that for section 18 approvals applied for prior to the passage of the Aboriginal Cultural Heritage Act 2021, new information cannot be used to review and set aside section 18 Ministerial consents;
(t) in the interests of procedural fairness, will the Minister table a copy of the Perdaman section 18 application presented to the ACMC and/or provide a copy to Murujuga Aboriginal knowledge holders who have been publicly expressing concern that the Minister has approved this project in an area of enormous cultural significance to them; and
(u) if no to (t), why not?
Answered on 10 May 2022
Advice was sought from the Department of Planning, Lands and Heritage as detailed below.
(a) Yes.
(b)-(e) In making its recommendation to the Minister for Aboriginal Affairs, the ACMC had regard to the consultation undertaken by Perdaman with the Ngarluma, Yindjibarndi, Mardudhunera, Wong-Goo-Tt-Oo and Yaburara groups, the Circle of Elders and Murujuga Aboriginal Corporation (MAC). The ACMC also had regard to a letter from MAC recommending that the Minister grant consent subject to conditions including the development of an endorsed Cultural Heritage Management Plan. The ACMC’s recommendation was consistent with MAC’s recommendation which was also reflected in the conditions of consent granted by the Minister.
(f) Yes.
(g)-(h) A copy of the consent is provided to the applicant as well as the relevant Aboriginal parties, in this instance being MAC and Ngarluma Aboriginal Corporation. A copy of a section 18 consent is not provided to third parties as it is a matter between a proponent and the Aboriginal parties. As this matter is between a private developer and Aboriginal parties, the Member may seek a copy of the consent from either of these parties.
(i)-(k) A section 18 Notice and consent relate to impacts to Aboriginal cultural heritage on the land that is the subject of the Notice. Matters relating to impacts from emissions are managed by the Environmental Protection Authority (EPA) pursuant to the Environmental Protection Act 1986 (EP Act), specifically through consideration of social surroundings. The Government has developed the Murujuga Rock Art Strategy and Murujuga Rock Art Monitoring Program, a transparent framework for managing and monitoring the rock art to protect it from the impacts of anthropogenic emissions, consistent with the Government’s responsibilities under the EP Act. The Government is committed to the ongoing protection of Murujuga's rock art in partnership with MAC.
(l)-(r) In relation to the land that is the subject of the section 18 Notice, the Minister and ACMC are dependent on the proponents, in consultation with the Traditional Owners, identifying Aboriginal cultural heritage on that land. Perdaman undertook consultation with the Traditional Owners and MAC in preparing its Notice. The Department of Planning, Lands and Heritage encourages all parties to report Aboriginal cultural heritage to the Registrar of Aboriginal Sites. Pursuant to the Aboriginal Heritage Act 1972, the Minister’s consent, once granted, remains valid
(s) The Aboriginal Cultural Heritage Act 2021 received Royal Assent on 22 December 2021. Notices lodged prior to Royal Assent are not subject to the provisions of the new Act.
(t)-(u) A copy of the section 18 Notice is provided to the relevant Aboriginal parties as part of the ACMC’s procedural fairness process. A copy of the Notice was provided to MAC, representing the Traditional Owners of the five groups, and which has provided support for the project to proceed. MAC continues to be consulted by the proponent on mitigation strategies to ensure the protection of Aboriginal cultural heritage, including the development of the Cultural Heritage Management Plan as required by the condition of approval by the Minister and EPA. It is open to knowledge holders to approach MAC for a copy of the Notice.
NB: The preamble to this question refers to Ministerial approval being given on 27 January 2021. As reflected in question (f), approval was given on 27 January 2022.