Aboriginal custodians in Western Australia's Burrup Peninsula warned the federal government they were "extremely concerned" a state-heritage approval for a fertiliser plant would put sacred sites at risk, more than two months before the federal environment minister made a decision not to block the project, documents reveal.
At the time, Minister for Environment and Water Tanya Plibersek was considering an application under the Aboriginal and Torres Strait Islander Heritage Protection Act to stop the $4.5 billion development by Perth-based multinational, Perdaman Industries.
The application was made by a group of traditional owners, Save Our Songlines, and cited the plant's impact on a number of significant Aboriginal sites on Murujuga country, including ancient rock art.
Ms Plibersek this week announced she would not stop the development, and the developer had reached an agreement with a separate, appointed group of custodians, Murujuga Aboriginal Corporation (MAC), to relocate some sites.
"The [MAC], which is the legally constituted and democratically elected Aboriginal organisation that represents the five traditional owners of the land, have agreed that a number of these rock carvings can be moved safely, and another site, with a rock carving and some stonework, can be protected on the site even if the fertiliser plant goes ahead," Ms Plibersek said on Tuesday.
"I'm confident that [Perdaman] is taking very seriously the agreement that it has with the Murujuga Aboriginal Corporation, and I'm confident that the MAC is overseeing all of the work here very carefully."
But in a letter to the Department of Agriculture, Water and Environment in June, seen by the ABC, MAC's chief executive officer, Peter Jeffries, said traditional owners initially "refused permission to relocate" sacred rock art multiple times before finally agreeing to Perdaman's request.
"The decision to allow the relocation of the two petroglyph sites at Perdaman was not a decision that was undertaken lightly," Mr Jeffries wrote.
Mr Jeffries also warned the state-ministerial approval "unnecessarily [placed] cultural sites within the National Heritage boundary at high risk".
He said that throughout consultation and negotiation with Perdaman, MAC explained the petroglyphs had considerable cultural significance, and initially resisted them being moved.
"The Circle of Elders have made it clear on numerous occasions that their preference is for rock art to remain in situ and undisturbed," Mr Jeffries said.
"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."
Issues raised over 'equality of negotiation'
The MAC was established in 2006, and companies wishing to develop the Burrup often consult and obtain cultural advice from the group.
Perdaman's plant sits within a state-designated "industrial zone", meaning the company does not need MAC's approval to proceed.
Mr Jeffries noted that the MAC did not have any power over approving developments and its only role was to facilitate cultural recommendations regarding heritage.
"There are serious, far broader issues that need to be addressed regarding the equality of negotiation between Aboriginal Corporations and proponents, particularly where the state government has publicly committed to changing legislation in favour of development on Murujuga," he said.
The letter also noted that while it was always MAC's preference to see heritage protected, Perdaman had "undertaken consistent and respectful negotiation with MAC about the proposed development".
In an interview with the ABC, Perdaman Chairman Vikas Rambal said the company's intention was always to work with the group "around cultural heritage values", and that he had "no doubt" MAC supported the project.
"When we started [we wanted] to see what less disturbance can we do. So the final conclusion after five years came this year, in May 2022, that we just need to relocate [the sacred sites]," Mr Rambal said.
Traditional owners had 'serious reservations'
Under the former WA Aboriginal Heritage Act, landowners and companies with mining or resource extraction rights could apply to damage, disturb or destroy a site under Section 18.
In 2013, the Barnett government granted Section 18 approval to Rio Tinto. This allowed the company to proceed with construction to expand its Brockman iron ore mine on the Juukan Gorge site, which led to the destruction of the sacred rock caves in 2020.
New laws, introduced after the Juukan Gorge inquiry and currently within the twelve-month "transitional period", will grant final say over Section 18 applications to the WA Minister for Aboriginal Affairs.
According to Mr Jeffries' June letter, MAC had a number of "serious reservations" with Section 18 approval granted to Perdaman by the WA government, which meant the project would potentially impact many more sacred sites than anticipated.
"The Circle of Elders and senior knowledge holders involved in negotiations with Perdaman agreed to the relocation of two petroglyphs and a grinding patch," his letter said.
"However the Section 18 states that the intended use will impact on 20 Aboriginal sites, including seven that have been explicitly agreed for protection … and three not within the development area.
"[These] include petroglyph sites of extremely high significance, as well as sites that are within the National Heritage Listing and possess clear National Heritage values."
In granting its approval to the section, the WA government was "advised that the intended use of the site [would] impact upon twenty Aboriginal sites".
Documents attached to the WA government's approval showed three sites would be "salvaged" by being relocated, and one site would be "partially impacted".
A spokesperson for the WA government told the ABC a condition of the Section 18 approval was the establishment of an Aboriginal Cultural Heritage Management Plan between MAC and Perdaman, detailing the protection and mitigation strategies of all Aboriginal heritage on the land.
Perdaman Chairman Vikas Rambal told the ABC there were additional sites in the Section 18 application, but only three sites it had reached agreement with MAC about would ultimately be impacted.
"There's only three sites which we are relocating. That's the approval we got and that's what we are banking on. There's no impact on other sites, so we're not disturbing any other sites," he said.
In his letter, Mr Jeffries also expressed concerns the state ministerial approval would give Perdaman legal immunity if it damaged any of the sacred sites.
"There is no specific conditions applying to the protection of sites within the Perdaman development footprint and non-compliance with the cultural heritage management plan would not be considered a breach," Mr Jeffries said.
"It is MAC's interpretation that the current Section 18 absolves Perdaman of any legal responsibility in the event of any impact to the 20 sites."
Mr Rambal did not respond to the ABC's questions about legal immunity.
Concerns about state approval outlined in letter
A spokesperson for the WA state government said Perdaman had adhered to the requirements of the Aboriginal Heritage Act, and was allowed to proceed under Section 18 after consultation with MAC.
"The conditions placed on Perdaman as part of its environmental approvals require it to demonstrate that the project has no adverse impact that accelerates the weathering of the rock art on Murujuga," the spokesperson said.
In his letter, Mr Jeffries said he believed MAC's concerns could be addressed by amendments to the conditions set out in the ministerial approval.
"MAC remains extremely concerned that the Section 18 issued by the minister unnecessarily places cultural sites within the National Heritage boundary at high risk," he said.
The letter also outlined concerns the Section 18 approval could impact on the World Heritage nomination currently in place.
The ABC is not aware if the issues MAC raised with the federal government in June were addressed, and MAC did not respond to request for further comment.
Ms Plibersek declined to respond to the ABC's questions because of legal issues concerning a separate application relating to the Perdaman development.
Ms Plibersek directed the ABC to an earlier statement, in which she said she'd taken the decision not to block the project only after meeting the Circle of Elders on the sites in question.
