State Development & Industry

State Development & Industry

Greens MP Chapple calls on EPA Chief to resign

Greens Member for the Mining and Pastoral Region Robin Chapple MLC has hit out at comments made by Environmental Protection Authority chief Paul Vogel today supporting mining companies seeking to ‘streamline environmental approvals’ ahead of conservationists.

“Mr Vogel needs to be reminded that his primary task is to protect the environment, not promote mining and other destructive industries, particularly when it comes to something as toxic and untested in WA as uranium mining,” Mr Chapple said.

“If Mr Vogel is so keen on promoting industry maybe he is in the wrong job.”

Mr Chapple is also calling on the Environment Minister Bill Marmion to act and stand Mr Vogel aside, pending a full review of his publically expressed views and actions since his appointment, to see whether he is fit for the job of Chairman of the EPA.

“The people of Western Australia need to take a long hard look at the Barnett-Grylls government’s relationship with the mining and business sector and I think they will find conflicts of interest at all levels.

“The Conservation Council of WA was quite correct to criticize WA’s deficient approvals process. I have many more examples of these practices. One only needs to look at what has taken place within the EPA this year regarding approvals for the development of the Browse LNG processing plant at James Price Point.

“If Mr Vogel is serious about the role of the EPA as ‘facilitating ecologically sustainable development’ then he has a completely different idea of this concept than what is regarded as acceptable by forward-thinking people elsewhere in the world.

“In the 1980s we saw the Burke Labor government working cheek by jowl with the corporate sector. That scandal became known as WA Inc. We now have the Barnett-Grylls government taking on their mantle,” Mr Chapple said.

For more information please contact Robin Chapple on 0409 379 263 or 9486 8255

WA government bungles Browse land seizure again: Grylls’ incompetence reaches new heights

Greens WA Member for the Mining and Pastoral Region Robin Chapple MLC has called for the Minister for Lands Brendon Grylls to resign after revelations that the Government has once again mishandled the compulsory acquisition of land at James Price Point.

“This is the second time the Government has botched the acquisition of land for the Browse LNG hub by failing to carry out what should be a procedural matter,” Mr Chapple said.

“Just a couple of weeks ago, on 19 November, the Premier Colin Barnett issued a statement saying the agreement reached with Traditional Owners had been in accordance with the Commonwealth Native Title process under the supervision of the Federal Court.

“Now we find this is not the case. This tops anything we have previously seen from this government and I don’t think it can be put down to incompetence alone.

“I can’t imagine Mr Grylls simply forgetting to notify Woodside or its Joint Venture Partners of key points in the process.

“This smacks of a government that has a complete disregard for the Native Title process and disrespect for the Native Title claimants.

“It demonstrates a government that is greedy and that will stop at nothing to push ahead with its own agenda, disregarding anything or anyone that gets in its way.

“Mr Grylls claims that no serious activity has taken place but this is a somewhat misleading statement when there has already been a good deal of land clearing, track building, the formation of a Turkey Nest dam and extensive drilling for water.

“Mr Grylls should resign from his ministerial role, or the Premier should sack him, and the Government should abandon its foolish insistence on building a gas processing plant at James Price point against the wishes and the advice of almost every other stakeholder.”

Browse (Land) Agreement Bill 2012

Browse (Land) Agreement Bill 2012

Second Reading

Resumed from 25 October.

HON ROBIN CHAPPLE(Mining and Pastoral) [10.08 am]: I rise to speak on the Browse (Land) Agreement Bill 2012. I want to touch on many aspects of this bill. One of the first things I want to deal with is the comments made over time by the Premier in relation to the James Price Point area. The area we are concerned with extends from Coulomb Point to James Price Point and on to Quondong Point. This area has been subject a number of times to environmental assessment, Warden’s Court rulings and, indeed, recommendations for national parks. I turn to comments made by the Premier and, interestingly enough, in doing so I do not attack the Premier, because the Premier is often advised by the Department of State Development about the nature of the area. I first quote from the Koori Mail of Wednesday, 22 October 2008, which stated —

He said he was keen to proceed with the 1000-hectare hub, offering shared facilities to companies keen to exploit the Browse Basin and Ichthys gas fields.

The Premier also revealed that he would scrap the right of veto promised to the traditional owners of the land by the former Carpenter Government.

“I respect and welcome the full involvement of Aboriginal people, but no group in our community will be given a legal right above the rest of the community,” he said.

It is important to relate that to what Premier Carpenter said in the other place. In relation to his visit to Broome for the thirty-fifth regional cabinet meeting, he stated —

As a result of this interest, I have asked Brendan Hammond, head of the Office of Development Approvals Coordination, to enter into dialogue with the people of the region. I reiterate that this is a dialogue, not an imposition or a demand.

The current Premier also commented on the area on a number of occasions, in a number of other papers. In an article that appeared in The West Australian of 5 January 2009 the Premier was quoted as stating —

“That peninsular area is some 200km long—it is basically flat tableland that simply comes to the coast,” he said.

“It’s an isolated site with no communities in the vicinity and I believe it would bring immense benefits to the Kimberley in terms of employment …

… This is not the spectacular gorge country with waterfalls and the like.”

On Wednesday, 24 June 2009, the Premier likened the site to “a pinprick” in the area and rejected concerns that the Kimberley’s fragile environment was at risk. He also later stated on Wednesday, 3 February 2010, that there was no spectacular nature in the area and that, indeed, he could see no problems. Continually, he has rolled out this sort of position that it is an unremarkable piece of coastline.

I will now take members back to a trip that I took with the Premier to the Burrup Peninsula in 2006. In 2006, the Premier, after he visited the area with me on one occasion—I subsequently visited the area with Hon Carmen Lawrence, a former Premier—put out a paper, which was basically a transcript of a debate held in the other place, and made the comment, which was the same comment he made to me on the Burrup, that —

As a former Minister for Resources Development over an eight-year period, I had effective responsibility for the Burrup Peninsula. I remain to this day proud of what happened in that portfolio during that time, but I concede … that although I was aware of the presence of rock art, I did not … grasp its significance. I believe I do now.

In the discussions that I had in 2006 on the Burrup with the Premier and subsequently with former Premier Carmen Lawrence, they both indicated that nobody had provided them with any specific information about the values of the area. Both the current Premier and former Premier Carmen Lawrence knew that there was an Aboriginal issue, but they did not understand what the issue was because it was never presented to them. Who did not present the information to them in that case, and who, to a large degree, has not presented the correct information to the Premier and, indeed, the Minister for State Development in this regard? It comes down to the Department of State Development. The Department of State Development in this instance, and the bill that we are dealing with, is the proponent. It is also the lead agency for all the other agencies dealing with these issues. The Department of State Development on its website states —

The Department of State Development provides leadership to drive responsible development for Western Australia’s future, by:

·          developing and coordinating significant State projects

·          leading co-ordination of approvals processes for major resources, industrial and infrastructure projects across government

·          negotiating and managing agreements between development proponents and the State Government

Therefore, the very agency that manages developments interacts as the lead agency with all the other departments and is the proponent. It is also this agency that provides information to its minister and, indeed, the Premier.

So, what do we know about the area? We have only to go to any of the other departments—whether it be the Department of Indigenous Affairs, Department of Environment and Conservation, the former Department of Land Administration or anybody else—to find out what they know about the area. The area has been subject to three mineral claims, all of which were rejected by the Warden’s Court because the area was considered too ecologically and environmentally important, as well as the significant heritage that ran through the area, which I will talk more about shortly. We know that DIA holds significant information about the importance of the area. We know that the area was gazetted as an interim registered site in the Government Gazette, and I will refer to that shortly. We also know that three eminent men, who were all awarded Orders of the British Empire, have at different times recommended that the area become a national park, and there are a number of documents to that effect. Therefore, it appears strange that the very agency in charge of this project—the lead agency—somehow did not seem to be aware of this information. We also know that information was provided or developed by the agencies, but that the Department of State Development did not receive it, had not sought to receive it or had somehow misplaced it. The agency that is actually the proponent and not the facilitator—although it can have a facilitating role in the project—was indeed supposed to provide good reliable information to the Premier and the Minister for State Development, and failed to do so.

I will go through some of the litany of failures and put on the record some of the issues. Later I will deal with the memorandum of understanding that led to the bill before us and the concerns that I and others have with that agreement. Those concerns are very similar to the concerns we have over the development of the Burrup and Maitland Industrial Estates Agreement. I inform members in passing that for two years now I have been trying to get documents through freedom of information requests about what actually happened during that agreement process and am still waiting for a result.

I will outline to the house the time lines, as far as we know. Woodside discovered Scott Reef gas basin in the Browse Basin in 1971, the Brecknock gas field in 1979, the Brecknock south gas field in 2000, and in 2005 it announced Quondong Point as a possible site for the Browse LNG plant. It is important to remember the year 2005 because a number of things happened in that year. In 2006, Inpex investigated the possibility of a Kimberley site for its Browse Basin Ichthys LNG plant. In 2007, the WA Labor government established the Northern Development Taskforce to investigate potential LNG processing precinct sites in the Kimberley. Again, it is really important to know what happened in those meetings, and I will talk about that shortly. It is also important to note that the person who headed the Northern Development Taskforce, or who was in charge of facilitating it, was Duncan Ord. He is now one of the senior officers in the Department of Indigenous Affairs.

In 2008, a strategic assessment was signed by the Western Australian and Australian governments and Colin Barnett became Premier. In 2008, the Premier announced the North Head site at Pender Bay as his preferred site. That is also important to remember because it will come up again later. In December 2008, the NDT announced James Price Point as the recommended site for LNG processing. Again, I will turn to that later. In 2009, at a meeting of traditional owners, the Goolarabooloo and Jabirr Jabirr claim groups voted by a significant majority to enter into a heads of agreement with the state and Woodside to move forward with the process of allowing an LNG facility at James Price Point. This agreement was conditional upon environmental and cultural heritage requirements being met, according to the Kimberley Land Council’s website.

In 2009, the Shire of Broome held an LNG forum and in November 2009, Woodside began the construction of a temporary meteorological tower near James Price Point. In December 2009, the federal Minister for Resources and Energy, Martin Ferguson, made onshore LNG processing on the Kimberley coast a condition of the joint venture partners—Shell, BP, BHP Billiton Ltd, and Chevron—keeping the gas field retention leases. Yesterday, at BHP Billiton’s annual general meeting, Marius Kloppers said that that was not his preferred option and we recently heard the head of Shell, Ann Pickard, say that her preferred option is now for a floating LNG processing plant. At the committee stage of the bill I want to know what will happen to this bill and its intent should either of the joint venture partners decide to move the project to another location or to an offshore floating processing plant. In September 2010, the Shire of Broome approved Woodside’s application for drill pads, turkey nest dams and transportables. In September 2010, the Premier and Hon Brendon Grylls issued an intention to take out a compulsory acquisition notice for the land between Quondong Point and James Price Point.

In October 2010, the local Broome community held a rally that was estimated to have been attended by 1 800 people. In December 2010, the LNG strategic assessment report was released. In March 2011, the WA Supreme Court dismissed Joseph Roe’s appeal against clearing permits on the grounds that Woodside’s plan was not a significant proposal but was merely a strategic proposal. That is really important because yesterday there was an announcement that there would be no assessment of the derived proposal because the matter had been dealt with in a strategic way.

In April 2011, the traditional owners’ negotiating committee co-chair Frank Parriman said that the state’s latest move for compulsory acquisition was outrageous and that the whole negotiating process lacked integrity. In 2011, the Broome families’ delegation led by Ann Poelina, Mitch Torres and Alan Pigram travelled to Canberra and presented a community petition, which I will deal with a little later, to senior government figures, including the federal environment minister, Tony Burke. On 9 July 2011, the WA Department of Indigenous Affairs began an investigation into the destruction of Aboriginal cultural sites by Woodside. To date, as far as I am aware, no action has been taken by DIA. In 2011, federal environment minister, Tony Burke, visited Walmadany and was greeted by about 400 traditional owners and community members in Broome for a special picnic in the park. On 31 August 2011, the environment minister, Tony Burke, announced national heritage listing for the dinosaur tracks at James Price Point. On 31 August, the former Kimberley Land Council CEO, Wayne Bergmann, went on ABC radio and called for the environment minister, Tony Burke, to stop the current project due to its social impacts. On 1 September 2011, WikiLeaks reported that BHP Billiton and Chevron complained to the US ambassador about being forced to accept the location of an LNG processing plant at James Price Point. On 4 November 2011, the Shire of Broome began investigating Woodside’s planning approval breaches. Also in November of that year, a Murdoch University study was highly critical of the strategic assessment report of the whale studies. Again in November, the former WA Environmental Protection Authority chief Barry Carbon described WA’s development approvals systems as corrupt. On 6 December 2011, the WA Supreme Court found that the compulsory acquisition notices issued by the WA government in September 2011 were invalid, throwing into doubt all the agreements reached between the traditional owners, the government and Woodside since that date. On 22 December, Woodside bypassed the Shire of Broome and lodged development applications with the state government-appointed development assessment panel. By 29 December, Woodside requested that the final investment decision be delayed to the first half of 2013.

In January 2012, the financial markets continued to hold negative opinions on LNG developments in Australia. That has been reinforced over the last few days, mainly because of the gas that has been found in America. In 2011, Woodside confirmed that it wanted to sell some of its equity in Browse Basin, and in February 2011 the WA government Development Assessment Panel approved Woodside’s development application, despite the Shire of Broome refusing to endorse a responsible authority report and clear evidence that Woodside was in breach of planning regulations and the WA Aboriginal Heritage Act. That is the more recent history of where we are at. We really need to start looking at the environmental issues that surround the area. All these environmental issues have been investigated by the government, whose reports identify the values of the area. The first report that I want to talk to is the 1962 Australian Academy of Science and National Parks Board of WA proposal for a national park on Dampier Peninsula. My very old and thumbed copy of the report, which I have here, states —

In 1958 the Australian Academy of Science instigated a national initiative to establish ‘a comprehensive system of reserves for our Continent’.

A sub-committee was established in each state to recommend areas that would best represent the distinct geographical regions of each state and the characteristic flora and fauna associated with each of these areas.

In 1962, the WA sub-committee recommended 313,600 acres on the Dampier Peninsula be set aside as a Class A National Park or ‘National Nature-Reserve’. This area extended south of Coulomb Point and included James Price Point and Quondong Point.

The area of proposed reserve overlapped several pastoral leases, including the area north of Coulomb Point, which was occupied by small pastoral leases. The Academy of Science recommended that should these become vacant, these leases should be incorporated into the reserve. When we talk about the reserve, there is already a reserve over Coulomb Point. I cannot read its number, but it was reserved in 1961. The report continues —

The area … Coulomb Point in Dampier Land between Broome and Beagle Bay has been selected by the Sub-committee in order to preserve a characteristic botanical association of the Northern Province of Western Australia. This association, the Pindan, occurs in the south of the Northern Province and consists of tall grasses under a fairly compact cover of Acacia. This part of Dampier Land is typical of the littoral Savannah land of Kimberley and has sandy soil, lightly timbered with bloodwood trees of several species, tall grass, …

The vine thickets were also noted for the first time in this report. That work did not end; it kept going.

I now turn to the document entitled “Nature Conservation Reserves in the Kimberley Western Australia” by the Department of Conservation and Land Management” and the “Conservation Reserves in Western Australia/report of the Conservation Through Reserves Committee on System 7 to the Environmental Protection Authority” of 1977. In 1971 the WA Environmental Protection Authority directed the Conservation Through Reserves Committee to review the Australian Academy of Science recommendations that had not been implemented and to make further recommendations for the conservation of reserves in WA. The CTRC divided the state into 12 geographic regions. As some members would know, the Kimberley is system 7. These were subsequently identified more fully in the Red Book, which I will turn to shortly.

In 1977 the CTRC published the “System 7 Green Book”, which I have here. It acknowledged —

The Point Coulomb Nature Reserve contains only a small area of pindan and correspondingly small populations of the Nail-tail wallaby and Dalgyte (Butler 1971). The Dalgyte is known to occur on parts of Waterbank Station to the east … The Committee believes that is important to protect an adequate area of pindan. It also sees a need to protect adequate areas of other features typical of Dampier Land such as coastal sand dunes, mangroves, Melaleuca thickets and swamps.

That is on page 34 of this report. The report notes that there were two options for the EPA—either to acquire Waterbank Station or to find land elsewhere. I will come to Waterbank Station shortly and the development of the proposals around Waterbank.

Coulomb Point Reserve that I referred to earlier is reserve 2983 and it is a nature reserve. The proposed Dampier land area of the national park was Wonganut Spring and that covers the area of Coulomb Point and James Price Point, virtually down to the next point, which I have suddenly lost from my memory, which is a little further to the south. It is important to note that in 1977 the area was identified as area that should be a national park. This is what the Minister for State Development, the Premier, refers to as an unremarkable piece of land. Who provided Hon Colin Barnett with that information? At that stage he had not been to the area. One assumes that the Department of State Development was providing the minister with that information. As we know, the minister was previously provided with poor information on the Burrup, which he firmly acknowledges.

I now turn to the items of the Coulomb Point Nature Reserve and its numbering and its vesting in the wildlife authority. It covers an area of 28 300 hectares and lies about 75 kilometres north of Broome. All these documents were available through DEC; indeed, to the Department of State Development. We have to remember that under State Development’s guidelines, it is supposed to access and provide all this information on behalf of proponents. There is a fundamental problem because the agency that is supposed to facilitate all this information to the government or to the proponent is, indeed, the proponent. One wonders how the lack of due diligence might have occurred in its pursuit of information. I will come to that later.

The next document I turn to is the “Kimberley Region Planning Study”, which was carried out in 1987 and prepared by Alice O’Connor. In 1986 WA set up the Kimberley region planning study as a response to the Kimberley pastoral industry inquiry of 1985. A submission from the Conservation Council of Western Australia urged that an assessment of conservation areas in the Kimberley be conducted concurrently with the evaluation of pastoral leases. The Land Resource Policy Council submitted to Premier Burke that the land use of the Kimberley region take into account the government’s decision in 1980 to use the Environmental Protection Authority’s recommendations for the Kimberley system 7 as a guide for the establishment of conservation reserves in the region. The report went on to identify that the government should follow the EPA’s recommendations for national parks and nature reserves for the Kimberley that were presented to the state government in 1980 in the system 7 Red Book. We have to remember that the James Price Point area was to be a national park. I am surprised that this material, which is readily available from the Department of Environment and Conservation, has not been identified or assessed in all the documentation that I have seen from the EPA, the Department of State Development or anywhere else. It is an absolute abrogation of responsibility by the proponent in this regard—State Development.

The first time that the government actually took action to stop development in the area was when there was an application for an exploration licence at Quondong Point, north of Broome. I identify that Quondong Point sits just to the south of James Price Point, and Coulomb Point sits just to the north, so the area is intrinsically the same area. In bulletin 519 from May 1991, the EPA responded to the application for a mining tenement at Quondong Point by Broome resident Martin Ynema, exploration licence 04/530. The EPA report notes —

The key biophysical environmental issues identified are related to the protection of the coastal vine thickets, —

Which I will come to shortly —

the recreational value and current and future usage of the coastal area, the scientific value of the fossilised rock type … —

Dinosaur footprints —

and the maintenance of the conservation values of the area.

It goes on to state —

The Western Australian Museum reports that the area to the west of the Broome–Minari road contains archaeological sites and ethnographic sites of great cultural significance to Aboriginal people. The Museum currently has proposed to declare part of the Quondong Point area as a Protected Area under the Aboriginal Heritage Act.

That is from the EPA’s report. We know what was going on back in 1991. It also states —

The Western Australian Museum recently reported that there are fossils in a white sandstone rock type at Quondong Point which are of great scientific importance. Dinosaur footprints belonging to at least three different kinds of dinosaurs are preserved as well as some of the best Cretaceous plant fossils recorded in the State.

Where was all this information? Was it ever produced in a trigger document to the EPA? No, it was missing. Why was it missing? Did DEC fail to provide it? Did State Development fail to receive it? Did State Development know about it and take no action whatsoever? The first recommendation in the 1991 EPA report is as follows —

The Environmental Protection Authority recommends that, in view of the environmental sensitivity of the area encompassed by exploration licence 04/530, the granting of the licence would only be environmentally acceptable if the licence were subject to the recommendations in this report.

It was really quite funny when I went to the Warden’s Court and found out that the Mining Warden refused this particular licence on the grounds of the environment and heritage. The EPA put in some conditions by saying, “Yes, you can explore in that area, but you can take only one kilo of material.” That must be one of the most interesting ways of knocking a project on the head—by stating in the EPA report, “We don’t have a problem with you going there, but you can take only one kilo of material.”

The next time that somebody tried to access the area was in what we refer to as the Terrex Resources hearing in August 1991. Exploration licences E04/645, 646 and 647 were applied for. This Warden’s Court hearing took place on 22, 24 and 25 July 1991. This, if anything, identified the reasons why development should not occur in that area. It identified many aspects, and it caused many things to happen. Those many things led to a vast amount of information. Terrex Resources applied to mine the area. The objectors were the Bidyadanga Aboriginal community; Kimberley Conservation Group; Broome Botanical Society; Kimberley Land Council, on behalf of Joe Roe; the Goolarabooloo Aboriginal community, which I think is also important to remember; and Boonaroo Pastoral Pty Ltd. The hearing was held in the Warden’s Court in Broome regarding the applications received by Terrex Resources to conduct exploration on the Dampier Peninsula in the areas between Coulomb Point and Willie Creek. The areas included James Price Point. Prior to the hearing, objections were received from the people I have just mentioned. The warden’s report notes the objections received from Aboriginal communities that these applications would cause disturbance, damage and destruction to important Aboriginal cultural interests in land, and that an order was received for a report on Aboriginal sites in the area. That was an interesting order because at that stage the Kimberley Land Council could not afford to do an assessment of the area, so it applied to the Department of Indigenous Affairs for special dispensation for the department to conduct an ethnographic and archaeological investigation of the area. That investigation was carried out by one of the department’s staff, and that was colloquially known as the Nick Green report, and I will come to that shortly. The surveys were undertaken from March to June 1991 by the Kimberley Land Council. The Kimberley Land Council worked with DIA, under the direction of Patrick Dodson, in relation to that area, and I will come to more about that a little later when I will talk about the cultural values of the area.

The Warden’s Court eventually came up with a determination. The determination was that the area not be allowed for exploration purposes because of its environmental and cultural values. Indeed, what came out of that was a clear understanding of the value of the songlines, the vine thickets, the most southern example of those vine thickets and the significance of the area. Again I point out that the Department of Environment and Conservation and the Department of Indigenous Affairs had full access to these documents, so why did the Department of State Development not have access to them? Why did State Development not know that the area had been chosen—the area opposed by many Indigenous people, environmentalists and conservation people? Why did the department not have this information to hand? Why did the department not provide its minister with a clear understanding of the values of the area, which would have enabled him not to say that it was an area of insignificance?

The Broome Botanical Society identified quite clearly that the commonwealth government recognised the rainforest conservation value of the area in the peninsula’s vine thickets. It identified that vegetation units were found in the area covered by the exploration licence applications, and it was the most important or geographically restricted area of vine thickets in Western Australia. I quote from the “Conservation Reserves in Western Australia” report —

“On W.A.’s Kimberley coast tiny pockets of rainforest have survived for thousands of years, completely cut off from similar ecosystems by the arid savannah that surrounds them.

Although well known to Aborigines for thousands of years, these remnants were only recognised by scientists just 22 years ago. They are scattered in a strip along the coast between Broome and Wyndam.” …

“The first broadscale ecological study of W.A.’s rainforest was undertaken in June 1987, following a grant from the Federal Government’s national rainforest conservation program.” …

The Commonwealth Government recognises that rainforest conservation is one of the most pressing conservation issues faced today. Containing a predominance of Indo–Malesian elements, the rainforests, monsoon forests and vine thickets are yielding valuable data for studies in evolution and biogeography.

Much information was provided. Indeed, in that hearing it was identified that the proposed national park boundary covered the complete area of James Price Point. The report states further —

The State Planning Commission’s soon to be released Kimberley Region Planning Study (K.R.P.S.) recommends the extension of the Point Coulomb Nature Reserve, as originally outlined in the Australian Academy of Science recommendation … It is proposed that this larger reserve be declared a National Park, in recognition of the major usage of its coastal environments. It is further proposed that it be named the “Dampierland National Park”.

Much of the information, recommendations and justification for conservation areas mentioned in the K.R.P.S. document, is contained in the major submission C.A.L.M. provided, when revising and updating the Conservation Through Reserves Committee (C.T.R.C.) System 7 Report.

The submission, soon to released to the public, provides exhaustive data on proposed nature conservation reserves. This publication, “Nature Conservation Reserves in the Kimberley, W.A.”, by Burbidge, McKenzie and Kenneally, should be published within the next three months.

That document was eventually published and did indeed recommend a national park in that area.

The Environmental Protection Authority’s decision about Terrex Resources was also interesting. Although it was ruled out by the Warden’s Court, the EPA bulletin—I have the bulletin here with me but, unfortunately, it does not seem to have a number on it—was released in 1991. The recommendations of the EPA about that area state —

The Environmental Protection Authority has considered the application for the granting of exploration licences in this area and has concluded that, subject to conditions, it has no objections in principle to the granting of exploration licences on environmental grounds. However, ground disturbing exploration activities under an exploration licence have the potential for causing environmental impacts. Accordingly, the Environmental Protection Authority recommends that the granting of exploration licences 04/646 and 04/647 are environmentally acceptable subject to the recommendations in this report which ensure that these potential environmental impacts are properly managed.

Recommendation 2 states —

The Environmental Protection Authority recommends that no exploration activities involving ground surface disturbance should be carried out on any area unless or until the approval of the Environmental Protection Authority, subject to any conditions as it sees fit, has been obtained for the exploration programme.

Any dispute between the Environmental Protection Authority and the proponent regarding its decision on any additional conditions should be determined by the Minister for the Environment.

The EPA also noted in recommendation 5 that it relied on the advice of the Department of Indigenous Affairs that the area contained significant Aboriginal sites and the potential for more sites that would require protection. The EPA was quite an interesting body in those days. It used to come up with these lovely recommendations.

I turn to the statement of the Minister for the Environment published on 21 May 1992—at that time, the Minister for the Environment was Bob Pearce, MLA—which states —

Subject to conditions 3,4,5 and 6, the proponent may conduct on ground within the licence area “non-ground disturbing” exploration activities such as the following examples:

(1)          Use of a four-wheel drive on existing tracks; —

That restricted them; there is only one in the area —

(2)          Use of hand-held equipment or instruments for geoscientific data collection or sampling, including a hand auger; and

(3)          Removal of material up to 3kg per sample.

I have been in the mining game, and if only three kilograms of material can be taken, there really is not going to be any exploration. In essence, the minister’s decision basically truncated any aspect of exploration going ahead. Notwithstanding that, it had already been completely blocked by the Warden’s Court because of environmental and heritage matters.

In 1991, Andrew Burbidge, N.L. McKenzie and Kevin Kenneally, from the Department of Conservation and Land Management in Western Australia, again dealt with the “Conservation Reserves in Western Australia” report, and identified again that the area should be conserved. They state —

In 1972, shortly after it was established by Act of Parliament, the Environmental Protection Authority (EPA) established the Conservation Through Reserves Committee (CTRC) to recommend a system of nature conservation reserves for Western Australia.

As I have already said, this is the system 7 area —

The EPA, after considering public submissions on the recommendations for reserves in System 7, made recommendations to State Cabinet, which were published in 1980. Although Cabinet endorsed all the EPA recommendations in principle, it decided that implementation of each recommendation was to be on the basis of separate Cabinet decisions. Very few of the recommendations have been further considered by Cabinet, mainly because of delays while various enquiries were completed, and the failure of all relevant Government departments to agree.

In 1986 the Government set up a Kimberley Land Use Study, later called the Kimberley Region Planning Study (KRPS) to be carried out by the State Planning Commission and the Department of Regional Development and the North-West.

The aim of the study is “to prepare a long range planning strategy for the Kimberley Region having particular regard to economic, social and environmental issues and to devise such mechanisms as are necessary to effect the implementation of that strategy.”

The primary objective relating to natural resources is “to identify areas and items of natural, cultural, historical or archaeological significance and to specify those strategies which will provide for the maintenance, conservation and where appropriate the development of the Region’s natural attributes and resources” …

What happened next? I refer to a classified advertisement in the Broome Advertiser on Thursday, 27 April 1995—it was not actually next; it was before then. In relation to the Dampier district, the lessee of the pastoral lease, Boonaroo Pty Ltd, was issued with a notice of intention to take or resume land.  That area was considered because one of the proposals that came to light was actually to develop what we refer to as the Waterbank Structure Plan. The Waterbank Structure Plan basically followed on from, again, the proposals to develop this area as a national park; something that has been completely missed, as I keep pointing out, in this whole debate.

The Waterbank Structure Plan was completed in 2005. After the purchase of the Waterbank pastoral station by the pastoral company I have just mentioned, the Waterbank coordinating committee was formed. It was chaired by the Department of Land Administration and included representatives of the Shire of Broome, Rubibi, the Ministry of Planning and Infrastructure, the Kimberley Land Council, the Kimberley Development Commission, and the Ministry of the Premier and Cabinet. As members can see, a lot of agencies knew what was going on.

Page 1 of the Waterbank Structure Plan states that it —

… offers scope to improve the social, environmental and economic values of the local community providing opportunities for recreation, culture and heritage, tourism, conservation, primary production and other commercial activities.

The plan continued —

The goal of this study is to develop a land use structure plan for Waterbank Station which has broad community support, encourages business investment, makes best uses of available resources, protects areas of significance to Aboriginal people, conservation, and is consistent with the concept of Ecologically Sustainable Development (ESD).

I again come back to the fact that the Premier and the Minister for State Development were unaware of all this. I do not expect the Premier or a minister to read every report, but I do expect their agencies and advisers to provide them with the evidence to enable them to make correct statements.

Under the heading of “Environmental principle”, the plan states —

To protect and enhance the key natural and cultural assets of the State and deliver to all Western Australians a high quality of life which is based on sound environmentally sustainable principles.

Under the heading of “Specific Issues to be Addressed”, the plan states —

·          Aboriginal land requirements

—   Physical needs for Aboriginal living areas, camping areas, meeting places, hunting and gathering activities.

—   Cultural needs and protection of sites of social, spiritual, ethnographic and archaeological significance.

—   Economic opportunities.

The plan also dealt with another contentious issue in the area, which was the relocation of Broome airport. It also identified the protection of groundwater resources, which, again, is interesting considering that the company that wishes to use the proponent’s land—the proponent is State Development—is having trouble finding water. As we know, water use in the area is already very restricted, and the community there regularly gets phone calls asking it if it is minimising its water use. The plan also looked at the possibility of horticultural land development opportunities, which I will come to shortly, and —

·          Tourism opportunities.

·          Recreation and Conservation requirements including an assessment of Kimberley Region System 7 proposals.

So who did a lot of the early work up there? Dr Phillip Playford, who I am sure the Minister for Mines and Petroleum knows well as having been one of his department’s advisers over many years—he has an OBE; he is a tremendous guy—did a lot of work up there in identifying the values of the area. Harry Butler from the Department of Fisheries and Fauna did work in the area in 1972, and the plan states that —

Subsequent archaeological and anthropological surveys have confirmed traditional usage of the area identifying numerous sites throughout the region with most along or near the coast, permanent and ephemeral wetlands and creeks.

Earlier, I identified a spring, and that spring, which is that ephemeral wetland, is slap-bang in the centre of the proposed James Price Point development. Here we have a plan that identifies all those issues but, somehow or other, has not seen the light of day; it certainly saw the light of day back then—it gained a lot of interest—but it has not subsequently. The Waterbank Structure Plan identified that the area needed to be protected for the provision of the Broome groundwater supply. Royalties for regions funding of $2.5 million or something like that has now been set aside for a new study of the water in the area because Woodside could not find any; we know the report identifies that there is not any. Last week, Woodside went up the coast to the community of Beagle Bay and asked if it could have its water! I can tell members that the community of Beagle Bay told the company to take a hike. There is no water, and for a long time we have known there is no water. Many studies have shown there to be no water there, so why did we go there? Again, I think it is the failure of State Development to provide its minister and the Premier with good, reliable information.

Moving on from there, in 2005 the Broome Planning Steering Committee produced a report that stated the coastal strip has a high density of Aboriginal cultural sites, and that there was a need to preserve it. The report further stated that a management report had been prepared by the WA Museum in 1989 that identified the values; I will come to that in a minute. I have a redacted copy of this report, which is so important to this issue and identifies everything, because it can only be seen by initiated men, yet this is the report that the Department of Indigenous Affairs somehow or other could not get to State Development. I will talk more about that shortly.

The first heritage study of the area in 1989 was conducted by Elizabeth Bradshaw and Rachel Fry for the Department of Aboriginal Sites. Although it was a heritage study, the report identified that the vegetation of the area is significant, and that the survey area lay within the Dampier botanical district as identified by Beard in 1979. The main vegetation types are pindan grasslands, mangroves and saltwater grasslands. However, in 1987 Chalmers and Woods identified eight coastal plant communities, all of which occurred in the survey area. These included the vine thickets that mark the southern limit of the monsoonal forests in Western Australia. I shake my head in disbelief because report after report after report identified the environmental significance of the area. I suppose it is interesting that the EPA went through its process of assessing this area without knowledge of these reports or indeed access to them. But we have to remember that the various conservation groups, in their submission to the strategic assessment report that we are dealing with here, which is a bill to allow access to the area based on a heads of agreement—I will talk to that shortly—identified the threatened ecological community, which I believe was dealt with by the EPA in a fairly perfunctory way. It identified the monsoonal thickets. It did not, unfortunately—which I think was a failure of this report—identify all the preceding reports, because if it had, maybe the EPA would have gone back and looked at its own Department of Conservation and Land Management and Department of Environment and Conservation documents which substantiated the value of the area. The report is good in the way it deals with the scientific values, but it should, in my view, have referenced all of these other documents that I have just referred to. That report was a fairly major submission to strategic assessment; it again went through the threatened ecological communities and the occurrence of those communities at that specific point.

It is very interesting that back in September this year I asked, via question on notice 5950 on the Red Book status, whether there was an intention to continue with the proposals for national park listing. I asked the Minister for Mental Health representing the Minister for Environment —

(1)                Is the Minister aware that in 1990 the Government gave a commitment to the implementation of all EPA Red Book recommendations in each system?

The answer was “Yes,” and it stated further —

(2)–(3)  The Department of Environment and Conservation will continue to implement proposals in accordance with Government priorities. All proposals are subject to consultation with other government agencies and, as required, the resolution of native title and Indigenous land use agreements.

I wonder whether the Department of Environment and Conservation actually knows this is going on in the middle of what is proposed to be a national park. The minister’s answer is interesting.

I have had to deal with these reports because to a large degree we need to identify who has been involved in writing these reports and why they need some listening to. We have to remember that Dr William Ride was appointed director of the WA Museum in 1957 and was a palaeontologist and mammalogist; Mr Gardner, a Western Australian state botanist, was part of the 1921 Kimberley exploration expedition; and Mr Phillip Playford was also a young geologist working at that time with the Geological Survey of Western Australia. These three gentlemen are renowned in conservation and heritage matters within the state and have played a significant role in determining the way this state’s conservation has gone.

I will now move on to the issues of heritage in the region. Again, this is something that seems to be lacking in the knowledge of the Premier, and, again, his department has failed to provide advice to him. The first time we really started hearing about the heritage values of the area—we as Europeans, that is, because the Indigenous people of the area obviously have known about their heritage for a very long time, because the songline has continued for many, many generations—was from Kim Akerman, who was with the department of public health in Derby. He wrote a report in 1974. He travelled through the area with traditional people and referred to the area of James Price Point as follows —

The sites described here lie along a coastal stretch of some ten miles in length immediately north of James Price Point. In 1971 W.H. Butler conducted a fauna survey of the area on behalf of the Department of Fisheries and Fauna. On this survey artifacts similar to those described were collected and forwarded to the Western Australia Museum … At present the coastal strip running from Coulomb Point to Cape Bertholet is a Fisheries and Fauna Reserve.

… The sites which appear to belong to three different phases I have designated A1, A2 and B. Sites designated as A1 and A2 appear to be considerably older than those that fall into the B category.

The report deals with material that had been located and found, and identified the area as a camping area used by traditional people living and working in the area, using fish traps and other means. It also loosely referred to the area as having significant cultural heritage. The first time the true evaluation of the cultural heritage came to light was when Elizabeth Bradshaw and Rachel Fry from the Department of Aboriginal Sites in the Western Australian Museum in May 1989 conducted their first survey of the area. These reports are all in the DIA records and if the document prepared for the Department of State Development had actually reached State Development—we still do not know why it did not—then these reports would have been available to State Development for it to know the values of the area. I will quote from the beginning of this report, which reads —

This report presents the results of an archaeological investigation for Aboriginal sites, conducted from 28 October to 12 November 1988, in the area extending along the Broome coastline from Bindingankuny in the north to Roebuck Bay Caravan Park in the south.

The Department of Aboriginal Sites was requested by both the principal Aboriginal custodian and the Lurujarri Heritage Trail Committee to carry out an investigation of the area covered by the proposed Trail, and to make appropriate recommendations for the management of the archaeological and ethnographic Aboriginal sites along the coast.

The investigation located 42 new sites which were recorded in detail. The records of these sites are held by the Department of Aboriginal Sites. All previously known sites in the investigation area have been included in this report for management purposes.

We know that the DIA had already started its proper recording process by this time, the act having come into effect in 1972. The report continues —

The principal finding of this investigation was that the entire coastal strip, referred to here as the Exclusion Zone, has a high density of Aboriginal sites of great significance.

Again, that seems to have been missing in the information that the Department of State Development had or, as the proponent and as the administrator of proposals by proponents, should have known. It goes on —

The Lurujarri Heritage Trail is a walking trail following 80km of coastline north and west of Broome. The Trail follows part of a traditional Aboriginal song-cycle — … This Trail was originally suggested by the principal traditional Aboriginal custodian, to help to educate non-Aboriginal Australians about Aboriginal sites and relationships to land. The Trail was established by the Lurujarri Heritage Trail Committee, funded by the Western Australian Bicentennial Heritage Trails Program. DAS first became involved in early 1988 during the development stage of the Trail, assisting with the writing of the Trail pamphlets and signs.

In October 1988 a meeting was held by the Lurujarri Heritage Trail Committee to discuss the future protection and management of sites along the Trail. It was felt that its opening, in addition to the increase in development and tourism in the Broome Shire generally, could seriously endanger these sites.

The physical trail used by Europeans then departed somewhat from the original trail that ran through Walmadany, James Price Point; Kardilakan, which is Quondong Point; and Minarriny, which is Coulomb Point. Although the trail is mapped, it is not the original Lurujarri heritage trail.

Several of the sites have already been subject to previous surveys, but the first time an evaluation of the song cycles was referred to was in the Bradshaw report —

The Aboriginal Law encoded in the song cycle has an unbroken tradition through to the present day. Aboriginal people in this area retain their traditional links with their Law, land, and resources, despite immense external pressures. Traditional ceremonial activities are still maintained, several occurring each year which are attended by people who travel hundreds of kilometres to participate.

The song cycle associated with the Broome coastal area relates the adventures of beings who travelled across the seas creating and naming islands, reefs, sandbanks, and marine species. They brought with them laws, rituals, and their ritual paraphernalia which in some cases was left behind and became metamorphosed into particular marine and coastal features … The song cycle begins in the islands to the north and travels south along the coast to Broome and La Grange and southeast into the interior.

The report by Elizabeth Bradshaw and Rachel Fry had already identified some of the significance. The significance of some of that area is not for the hearing or for the listening of uninitiated males. As a result of that, at a meeting held on 9 February 1989 the Aboriginal Cultural Material Committee identified that—members will have to excuse my pronunciation of some of these—Dapadapakun, Titirrkun, Lurujarri, Jurlirri, Minarringy and Parra be protected as —

Requested by Aboriginal people because of a threat of site disturbance by pastoral, tourism or other activities.

RESOLVED to recommend to the Minister that DAPARDAPAKUN, TITIRRKUN, LURUJARRI, JURLIRRI, MINARRINGY and PARRA site complexes be declared Protected Areas under Section 19 of the Aboriginal Heritage Act.

That was the first recommendation and there are plenty more. It is interesting to note that the Broome shire council had some concern about the declaration of this area because it was concerned about tourism. It wrote to Hon Carmen Lawrence, MLA, Minister for Aboriginal Affairs, on 21 September 1989 —

Council has considered the above mentioned Management Report prepared by Elizabeth Bradshaw and Rachel Fry of the Department of Aboriginal Sites, Western Australian Museum.

Council believes that the Report and the Recommendations contained therein have far reaching consequences for the Community of Broome and therefore the Community should be consulted as widely as possible. Accordingly Council requests that the Report, which has copyright status, be released for public consultation and discussion, and … we seek your approval to release the Report.

The briefing note sent to the Premier in that regard reads —

“A Management Report for the Lurujarri Heritage Trail, Broome, Western Australia” documents the results of this and all previous investigations. The report is a management plan which provides recommendations for the protection of Aboriginal sites.

The report recommends that 4 Protected Areas under the Aboriginal Heritage Act 1972-80 be declared within the area surveyed, and suggests an exclusion zone of up to 2km wide along the coastal strip. The exclusion zone was requested by the principal custodian for the area as a means of retaining the integrity of the ceremonial song cycle. It does not necessarily mean that no development can occur, but rather that all developers should apply under Section 18 of the Aboriginal Heritage Act —

We are still trying to see the result of a section 18 application for that area —

… ensuring that the full process of consultation with the Department of Aboriginal Sites and Aboriginal custodians takes place.

The report also recommends that a management committee be established, consisting of Aboriginal representatives and other interested parties to devise a management plan for the area.

This letter questions the credibility of Mr Paddy Roe, the principal custodian for the area. Mr Roe is accepted as the main spokesman for the area of coast in Broome and has been consulted frequently for many years by the Museum, academic institutions and independent consultants.

Many of the newly recorded sites are archaeological sites. The Protected Area proposals cover both the major ethnographic and archaeological sites of outstanding significance. This archaeological aspect has not been considered in the letter.

That was the letter that went to the Premier. As I said earlier when dealing with what we refer to as the Terrex hearing, evidence of the cultural values of the area was provided to the hearing, which led the warden to deem that any ground-disturbing in that area should not be allowed—the same ruling that was dealt with in the Ynema case. I have in front of me the first pages of the Nicholas Green report. There is nothing in what I have in my hand that I am not allowed to see. But it is important to note that that report went on to identify a number of very important issues. The abstract reads —

This report was undertaken by the Department of Aboriginal Sites for the Kimberley Land Council Inc. and presents the results of an ethnographic survey of land covered by three Exploration Licence applications, E04/645, E04/646 & E04/647 on the coast north and south of Broome, in the West Kimberley.

The only ones we really need to concern ourselves with are E04/645 and E04/646 because they are the two that covered the Walmadany or James Price Point area. The research was conducted and the report compiled by Nicholas Green, senior heritage officer with the Department of Aboriginal Sites. The survey was conducted under the control of the Kimberley Land Council pursuant to an order issued by the Broome Mining Warden in September 1990. The survey was conducted during the period 19 March to 27 June 1991, on the land specified “Y” in the above exploration licence application. The survey recorded ethnographic sites in detail, and defined the existence of a major feature of current mythological and ceremonial significance to Aboriginal people—the song cycle. The principal finding of the survey was that a large part of the exploration licence application, including the coastal strip, is of extreme significance to living Aboriginal people.

I will quote again from the beginning —

The secret/sacred cultural information contained specifically in the section titled Song Cycle and in Appendix 1 have been provided by the Aboriginal custodians detailed in order to provide evidence to the forthcoming hearing on 23 July 1991. The custodians do not wish for this information to be made available to women or uninitiated men who are not versed in the ceremonies described within.

Basically, the report goes through the whole area. I quote again —

The survey commenced on 18 March and it was soon realised that matters beyond the author’s control would prevent the survey and report from being completed within the available time frame, for evaluation by the Aboriginal objectors (now being the Goolarabooloo Aboriginal Corporation, Yawuru Aboriginal Corporation, Nygah Nygah Aboriginal Corporation, Bidyadanga Aboriginal Corporation, Kimberley Law and Cultural Corporation, the Kimberley Land Council and the traditional law keepers in the area, some of whom are represented by the above corporations) and the ACMC, in order to be submitted to the Warden for the hearing on 1 May 1991.

The reason was that they had found so much cultural material, both physical and ethnographic, that it soon became clear that to conclude the report in the time available would be impossible. The warden accepted the request for an adjournment of the hearing until 23 July 1991, but also because the company had not been in communication with the warden and did not appear in court on the day of the hearing. The successful adjournment enabled the field survey to be completed. It also enabled an archaeological assessment to be completed by Dr Susan O’Connor and Dr Peter Veth of the area within E04/645 in order to provide further evidence to the warden.

I will not go too much further through this document, other than to say that it provided undeniable evidence of the values of the area. It also went on to identify that the KLC was representing Mr Paddy Roe, who is claiming custodianship, not traditional ownership, of the country within these two clan estates. He claims custodial rights even though his mother and father are Nyikina language speakers from Bidan buru, which is near Dampier Downs in the east, because “the country was given to him to look after”. I have a letter from the KLC that supports that.

Mr Roe was born, and his parents died and were buried, at Marrlmarrlmarr buru, at the sheep station on Roebuck Plains. Marrlmarrlmarr buru is in the country of the Yawuru speakers. As a young man, Mr Roe ran away with his first wife to Broome and found Mr Douglas at the four mile dairy farm. He told Mr Douglas that if he saw any people looking for him, not to tell them where he was. Mr Douglas offered Mr Roe some work at Minarriny, which he and his wife accepted. Mr Douglas moved Mr Roe and his wife to Walmadany, where Mr Roe had to cut a track to Minarriny. It was during this period that the Jabirr Jabirr mob taught Mr Roe everything that they knew about the songlines and the country. It was also during this period that two daughters were born to Mr Roe, one of whom had a mark of some significance on her arm when she was born. It has been identified that these children in turn have married and had children, and the entire family network now has rights to the area. It is important to identify that it was acknowledged by the Kimberley Land Council and many others that the area was spoken for by Mr Roe.

It is also interesting to note—I am not sure whether, again, the Department of State Development is aware of this—that the Government Gazette WA of 15 March 1991 reads as follows —

At a meeting of Executive Council held in the Executive Council Chamber at Perth on 19 February 1991 the following Order in Council was authorised to be issued —



Whereas it is enacted (inter alia) by section 20 of the Aboriginal Heritage Act 1972–1980 that where the Trustees recommend that it is in the general interest of the community to do so, the Governor may, by Order in Council, declare that site to be a temporarily protected area; and whereas the Trustees recommend to the Governor that detailed investigations should be conducted in the locality of Quondong Point; Now therefore, His Excellency the Governor acting with the advice and consent of Executive Council and in exercise of the powers conferred by Executive Council and in exercise of the powers conferred by section 20 of the Aboriginal Heritage Act 1972–1980 hereby declares that the area specified in the first column of the Schedule to this order is a temporarily protected area for the purpose of the Aboriginal Heritage Act 1972 in relation to the area specified in the second column.

Nothing has removed that order. So, those areas still remain protected areas. A further order was made in relation to Willie Creek on that same day; so we know that the area does actually have a temporary protection status over it. I would, therefore, love the Minister for Indigenous Affairs to go back and try to figure out what he is going to do about that, given that the area is still, to my knowledge—because those gazettals have never been removed—temporarily protected.

In relation to Lurujarri heritage trail, as I have already identified, there was significant funding from the federal government and the state government to create that trail. There are some really interesting articles about the management of the Lurujarri heritage trail, but no more so than the Lurujarri heritage trail document that was produced by none other than the Mamabulanjin Resource Centre in Broome and the Kimberley Law and Cultural Centre. This is in essence a document that is handed out to tourists who go to the area, and it identifies the heritage value of the area and the heritage trails and the networks within those trails. Those trails pass through the very areas of the proposed James Price Point development. Again, these documents are readily available, and, again, very little, if anything, has been mentioned about the values of the three sisters’ Dreaming, the Nadi women Dreaming, and the Kundandu Burru and the snakes Dreaming, which exist along that trail. So why did State Development not know?

I now come back to a briefing note that was prepared by the Department of Indigenous Affairs for the Department of State Development. The briefing note was prepared on 12 January 2009, before the proponent had made its submissions to the Environmental Protection Authority. The document identifies 16 documents relating to sites along the area of the proposed James Price Point development. It identifies the categories of those sites. It identifies the nature of the information. It then goes on to give site spatial details—exactly where the sites are—and it makes some general comments. It refers to heritage survey reports on this area: the Akerman report; the Arpad Kalotas report; the Rory O’Connor report; the Elizabeth Bradshaw report; the Kimberley Land Council’s report, which was in relation to what we refer to as the Nic Green report; and the Moya Smith report. What we know from answers to parliamentary questions and questions at estimates hearings is that this document seems to have been invisible. The email that attaches to the front of this document is from Rebecca Bairnsfather-Scott to Julieta Abella, and reads —


This is the brief that was sent some time ago — 

We assume that “sent some time ago” means to the Department of State Development —

identifying the issues that the department should have been aware of.

What we know is that it might have been handed over in some informal way, and we know from the Department of State Development that it might have been received in some informal way, but nobody recollects. Yet, as the document says at the very beginning —

The following information has been prepared in response to a request from the Department of State Development for Aboriginal heritage sites registered with the Department of Indigenous Affairs along a 10km investigation corridor in the vicinity of James Price Point.

I think it is incredibly suspect as to why this document did not roll up at State Development so that it could become aware of the issues and could have advised its minister, the Premier, of the significance of the area. The department merely provided him with the information that it is not an outstanding area and that it is not an area of significance. So, again I would like to know the full history of that document.

The Indigenous land use agreement states —

The Parties agree to work to identify the approximate location of the LNG Precinct by no later than 31 May 2009. In identifying the precise location and layout of the LNG Precinct the Parties will have regard to Aboriginal heritage issues, environmental issues and the construction, operation and economic implications of the locations considered for the LNG Precinct. The Parties commit in particular to entry into a Heritage Protection Agreement or agreements.

How could the parties do that? They did not have the information. The document that was actually sent by DIA never rolled up, so they did not know. Subsequently, after a number of concerns raised by traditional owners in the area, a team from DIA was sent up north to the area to look at it and indeed to identify a site—and it did. It identified site 30274 on 27 July 2011. The team went up there and found artefacts, ceremonial material, middens, fish traps, mythological quarries, repositories, caches, skeletal burial material, archaeological deposits, shells, water sources, ochre—a number of issues. The team then wrote a report that it sent to the Minister for Indigenous Affairs, which said, “Oh, look, we’ve been up there and, yeah, it’s really surprising you didn’t know about this because we’ve all got the reports, we’ve read the reports, we know about them.” The team’s report states —

·          Conversations between Mr Roe, myself and James Cook during subsequent Compliance inspections, made clear that Mr Roe had concerns with the way that Aboriginal sites had been mapped on the Register. He stated on a number of occasions that the whole area was one continuous site and that mapping places with boundaries that did not join had the effect of segmenting the significance of the area.

The team did some compliance work up there. It looked at site 12684, Inballal Karnbor, and identified this important part in its report —

·          In order for Robert and myself to familiarise ourselves with the significance of the area and places within, he entrusted to us a copy of the Nic Green Report written for the KLC in 1991 which is known locally as the ‘Terrex Report’.

So, the two officers from DIA acquired a copy of the Nic Green report known as the Terrex report, which is held in DIA. It continues —

·          During the next few days we familiarised ourselves with the content of this report. Mr Roe said that there was also a map associated with the report that would also be helpful. The maps were located on Thursday evening and presented to us that evening. The maps were apparently drawn by Nic Green and Franz Hoogland during interviews with Mr Paddy Roe and other Senior Lawmen.

That is, senior lawmen for the area. The report continues —

… We asked Mr Roe if he would be prepared to allow us as DIA officers to trace the outline of the area he had indicated as the site boundary in order for the area to be mapped on the Register. He was comfortable with this and Rob Brock completed the tracing by early Friday afternoon.

·          We immediately sent the outline through as a number of email attachments to Cesar Rodriguez, acting Manager Heritage North.

The DIA officers came back to Perth, submitted their report and identified the area as a site. But it was always known as a site. It was in the Government Gazette that it was a site. I therefore do not know why it is so difficult for departments to go back through their own records and provide the relevant information.

This matter was highlighted again when in an estimates hearing on Thursday, 17 November 2011, I asked —

I now go to the Browse liquefied natural gas precinct, on page 22. In relation to the Aboriginal song cycle at James Price Point, at what time did the Department of State Development become aware of the WA Museum’s July 1991 report of the ethnographic survey and exploration of licence E04/645 and E04/647, which determined the area was an Aboriginal protected area?

I was advised that the department would take that question on notice. The answer that came back in relation to the Aboriginal song cycle at James Price Point reads —

The Department of State Development first became aware of the existence of the 1991 Department of Aboriginal Sites report in August 2010. This was a result of a “passing” reference made to it in a Kimberley Land Council report to the Browse LNG Precinct Strategic Assessment.

I received a copy of the document sent to the Department of State Development. It was produced on 12 January 2009. This document would have informed the department about all the issues it needed to know but which it happened to find out in passing a year later. Again, in my view it shows complete mismanagement by the facilitator and the proponent of this development. I then asked a question on 19 September 2012 —

I refer to the heads of agreement entered into on 21 April 2009 between the Premier on behalf of the state of Western Australia, Mr Don Voelte on behalf of Woodside Energy Ltd, and Mr Wayne Bergmann on behalf of the Kimberley Land Council in relation to the proposed Browse LNG precinct.

I asked in part (4) —

Did the Aboriginal Cultural Material Committee, by its resolution on 11 July 1991, determine that a songline in the area of the proposed Browse LNG precinct was important and significant for the purposes of the Aboriginal Heritage Act and should not be explored upon?

The answer was, in part —

No. At the 11 July 1991 meeting, the Aboriginal Cultural Material Committee resolved to establish a subcommittee to review a heritage report dealing with an area that encompasses the Browse LNG precinct and to submit the subcommittee’s findings to the Mining Warden. The subcommittee formed the view that the song cycle path, as identified in the Mining Warden’s report, encompasses places to which section 5 of the Aboriginal Heritage Act 1972 applies, that all areas defined as important and significant have significance under the AHA, and that no exploration activity should occur on areas defined as the song cycle path.

The minister said no, but he actually said yes! It is really amazing that every time we go down this path there seems to be either obfuscation or a lack of understanding.

One of the issues that is obviously of concern to many people is the processes associated with who claims the land. I make no observation or judgement as to who may or may not claim the land. Certainly, letters written by the KLC and by Carol Martin, and newsletters from the Kimberley Land Council, identify that Joseph Roe and Paddy Roe speak for the country. It is also noteworthy that the proceedings of the National Native Title Tribunal in the matter of Joseph Roe and Cyril Shaw on behalf of the Goolarabooloo–Jabirr Jabirr Peoples v State of Western Australia and another mining project, Kimberley Quarry Pty Ltd, were not disputed by the state. Whilst Joseph Roe was not the sole applicant to the native title claim, I accept that as one of the two persons comprising the applicant and senior law bosses of the area of the proposed licence, he has the highest authority to speak on behalf of the native title body for this matter. The state of Western Australia, which is party to that, did not dispute that in any way, shape or form—it agreed. The state actually went in to bat for Mr Roe in his matter against Kimberley Quarry Pty Ltd. The government cannot have it both ways.

Going back to a letter dated July 2005, the Kimberley Land Council identified that Woodside’s West Kimberley feasibility studies, provided to KLC by Joseph Roe, had specific instructions that Woodside is to communicate only with Joseph through the KLC. It is noted here that on 7 October 2005 the Kimberley Land Council stated in a letter to the Woodside Browse project manager that on 23 August 2005 at Mudnunn, Don Voelte, Woodside CEO, made a detailed presentation to senior Majamajid. After some deliberation and consideration, the senior Majamajid made their decision to advise Woodside that the answer to Don Voelte’s request to engage in shared partnership at the proposed location on the Dampier Peninsula was no. The Majamajid made it clear to Woodside that decisions regarding cultural integrity of the Woodside interest proposal areas are to be taken on a collective basis.

In the very early period—2005, which I will come to shortly—it was clear that everybody was singing from the same song sheet. On 15 September 2005, Carol Martin—again, over an issue which I will come to shortly—advised Joseph Roe that she had tried to facilitate a meeting with Minister Alannah MacTiernan. She had referred these matters to Mr Jeremy Dawkins, chair of the Western Australian Planning Commission, for consideration. Again in 2005, the KLC identified—this is in relation to the meeting with Mr Voelte —

After some talking and thinking, the Senior Majamajid decided to tell Woodside that the answer to Woodside’s request to build a gas plant was ‘No’.

What do we know of the area? It is interesting to try to comprehend what the values of that area have been over time and why the Lurujarri trail is so special to all Indigenous people in that area. The Dreaming actually runs below the surface. I have a report here entitled “Law Below the Top Soil”, which is a recently written report by Peter Botsman, BA (Hons), Dip. Ed. The report was written on behalf of Joseph Roe of the Goolarabooloo family; Neil McKenzie, Jabirr Jabirr lawman; Anne Poelina, on behalf of the families of Broome; and Mitch Torres, on behalf of the families of Broome. The report states —

Law Below the Top Soil will stimulate a much needed public debate. It presents a series of findings and recommendations to the Broome and wider Australian community which we fully concur with and are determined to follow through. Explicitly that the proposed James Price Point LNG precinct should never be built and that the Lurujarri Trail should be protected as a model of indigenous tourism for the future.

Law Below the Top Soil finds that the process of consultation in relation to the proposed LNG liquefaction industrial complex at Walmadany (James Price Point) was fundamentally flawed. This complements the findings of an independent report commissioned by the Kimberley Land Council. —

That independent report is the “Traditional Owner Consent and Indigenous Community Consultation: Final Report” dated 3 September 2010. “Law Below the Top Soil” continues —

The principle of Indigenous Free Prior Informed Consent (IFPIC) was ignored. It also reinforces the decision of West Australian Supreme Court Chief Justice Martin that the process of compulsorily acquiring land from Goolarabooloo and Jabirr Jabirr traditional owners was unlawful.

The report was really very interesting and a very good read because it explained to me and many others the values of the law below the topsoil. It is not about something that passes on the surface of the ground; it is the ground itself. We have to remember that this goes right back to when Paddy Roe was writing in the Broome newspaper about the values of the area, indeed, where the law was. As we have heard, many other reports, such as the Nick Green report, quite clearly articulated a lot of this.

What is interesting is the notion of a vote held by the Kimberley Land Council in relation to these issues. According to my understanding, the vote was 164 in favour and 108 against. However, people need to understand how Indigenous people actually conduct their business. Voting is not the norm. Abstention and positive reflection are usually the ways of determining an outcome; “I’m for it and that mob who are not saying anything are against it”. We know that out of the 1 200 people who could have rolled up to that meeting, many abstained. We also know that many of the people who were initially at the meeting, left the meeting, rather than vote. So, for the Department of State Development to proffer the view to its minister that this was a resounding outcome is a bit of a nonsense. It is also important to note that very shortly after that, a few days later on Sunday, 26 November 2009, the Goolarabooloo–Jabirr Jabirr people declared —

We the undersigned are Traditional Owners of Goolarabooloo–Jabirr Jabirr Country and make the following declaration:

We recognize and support Joseph Roe as Senior Law Boss and Custodian of Goolarabooloo–Jabirr Jabirr Country.

Walmadany within Goolarabooloo–Jabirr Jabirr Country is OUR land.

We do NOT consent to the development of an LNG precinct on OUR land.

We do NOT consent to the Kimberley Land Council signing any agreement with Woodside and the State Government to develop an LNG precinct on OUR land.

As native title claimants, our views, opinions and desires regarding OUR land and culture have NOT been represented by the Kimberley Land Council.

All ground works currently under way by Woodside on OUR land must stop immediately.

We will not allow OUR land to be taken from us.

We will fight for OUR land …

That declaration was signed by 261 signatories of the Goolarabooloo. A further document states —

We, the undersigned, are Traditional Owners and Associated Members of the Nyul Nyul, Nimanbur and Bard of the Dampier Peninsula and make the following declaration:

We recognize and support Joseph Roe as Senior Law Boss, Law Keeper and Custodian for Jabirr Jabirr and Ngumbal Country.

This declaration was signed by 27 signatories of the Nyul Nyul, Nimanbur and Bard in March 2010. That was the way that the Goolarabooloo–Jabirr Jabirr people were able to express their disappointment about a vote that only 164 people supported. Therefore, for the Department of State Development to provide to the Premier evidence that somehow or other this was a resounding majority, when a few days later, this petition, which I am willing to table if anybody calls for it —

Hon Alison Xamon interjected.

Hon ROBIN CHAPPLE: Hon Alison Xamon has asked me to table the document, so I seek leave to table it.

Leave granted. [See paper 5442.]

Hon ROBIN CHAPPLE: I hope that now, having tabled the declarations, the Department of State Development can find time to provide that information to the Premier so he knows the situation.

I move on to industry in the area. I talked about the Terrex report and others. However, we really need to know where the notion of this development came from. A letter from the Minister for Minerals and Energy, David Parker, to Ernie Bridge, Minister for Water Resources, was about a former mining tenement owned by Markku Sarubin in the area of Quondong that had been not allowed, due to the heritage and environmental values of the region. However, in letters from Joseph Roe to the Kimberley Land Council, to the government and to Markku Sarubin, they had no problem with Mr Markku Sarubin retaining the property at Quondong Point, as long as no mining activity took place. The mines department had agreed that mining could not occur because the area was prohibited from industrial impact by the Department of Indigenous Affairs. DIA had said, “No, you can’t do anything out here”, and the mines department had accepted that. In a letter from David Parker to Hon Ernie Bridge, MLA, Minister for Water Resources; Aboriginal Affairs; North West, David Parker wrote —

I am advised by the Director General of Mines that the Department has at no stage opposed the granting of a suitable Land Act lease to support Mr Sarubin’s proposed horticultural pursuits.

Remember that earlier there was an issue regarding the development of the area and that in the earlier reports horticultural purposes had been specifically allowed for. That is, in essence, because of this application. The letter continues —

Provided Mr Sarubin meets his expenditure obligations under the Mining Act he is entitled to hold his existing mining lease. The dwelling and horticultural activities carried out as an adjunct to his mining operations to provide accommodation and sustain his family would be acceptable.

The government, the mines department and the Minister for Water Resources said there was no problem keeping that land as long as there was no mining and the ground was not disturbed. The Western Australian Museum also identified that the mining lease ML04/81, which was Mr Sarubin’s mining lease, should —

(i)            … not be excised from the proposed Lurujarri Protected Area;

(ii)           Mr Sarubin be allowed to continue to utilise the area for horticulture purposes;

Mr Hugh Jones, the then assistant director, mining engineering division, of the Department of Mines, who I have worked with and whom I am sure the honourable minister remembers well, was advised by the Museum’s department of Aboriginal sites that —

The Committee has asked me to advise your Department that there are no objections to Mr Sarubin retaining the lease provided that no mining activity takes place.

Again, there was a reinforcement that we should not do anything in the area of Quondong, James Price Point or Point Coulomb. That letter was signed by Vera Novak, the acting registrar of the Department of Aboriginal Sites in a letter to Mr Hugh Jones, assistant director, mining engineering division.

Further, in a letter to Markku, Elizabeth Bradshaw, the site documentation officer of WA Museum, wrote on 29 March 1989 —

The Aboriginal Cultural Material Committee of the Western Australian Museum has recommended that this area, known as Lurujarri, be declared a Protected Area in accordance with Section 19(1) of the Aboriginal Heritage Act 1972–1980.

This declaration will result in the vesting of this land with the Trustees of the Museum. It does not invalidate existing title, and can possibly coexist with a mining lease. As Paddy Roe, the traditional Aboriginal custodian, supports your current use of your lease, the Protected Area will not alienate any of your existing rights. It will however, protect this country in the event of any changes in your leasehold.

Bearing in mind that the current lease had already been established at that time for horticultural purposes, not mining.

At the meeting of the Aboriginal Cultural Material Committee on 8 June 1989, it was identified that Mr Sarubin be allowed to continue to utilise the area for horticultural purposes only. The mines department was advised that the Department of Aboriginal Sites had no objection to Mr Sarubin retaining the pastoral lease, provided no mining activity took place. Once again, we are now continually reinforcing that the area should not be utilised. How many times do we have to do this?

We start to figure out that something changed in 2003. In 2003, Steve Burgess of Land Administration Services wrote to Markku Sarubin in relation to Alannah MacTiernan, MLA, Minister for Planning and Infrastructure, requesting a lease for 9.8 hectares of land on the Dampier Peninsula. Mr Burgess wrote —

… The Hon. Minister has requested that I respond to you on her behalf.

I confirm that the area of land is currently part of Waterbank Pastoral Lease held in the name of the Minister for Lands, having been purchased some year ago to assist with the future expansion of Broome. The Hon. Minister has advised that she is prepared to surrender this portion of the Pastoral Lease to allow for the creation of a lease and an access easement from Manari Road.

This Office is accordingly seeking comment from the Shire of Broome and other Government Agencies as to any specific conditions to be included into the proposed lease. The lease would be for a term of 10 years for “non-intensive Agriculture” with rental yet to be determined by a Valuer General’s valuation.

Again in a letter from 2003, the executive director of the Department of Land Administration to Jim Limerick, the director general—it does not say here, but knowing him, I would suggest that he was in the Department of State Development at the time—states —

Mr Sarubin has complied with his obligations under the Mining Act, although it is acknowledged that an area of lease has been developed for horticultural purposes. The area is not considered highly prospective for mineralisation and there are no objections to the mining lease being replaced by a special lease for the purpose of non-intensive agricultural together with the necessary legal access.

These documents all come from State Development. How in hell did it not know what was going on? The letter continues —

Accordingly, under section 16(3) of the Mining Act, approval has been given.

A letter from Tom Stephens to Markku’s partner, written by Shelley Eaton, states —

The Minister for Planning and Infrastructure has committed to providing a lease to Mr Sarubin through the surrender the land out of Waterbank Pastoral Station which is now unallocated Crown land and the creation of a lease to secure the tenure.

It went on to advise Mrs Sarubin of the fact that that is where we were going.

In 2005, things changed. A document called “Regional Minerals Program: Developing the West Kimberley’s Resources” was released. In that document we see a complete change in the tone of the letters going to Mr and Mrs Sarubin because in 2005 the West Kimberley’s resource development study was commissioned by the federal Department of Industry, Tourism and Resources. That study was undertaken within the framework of the Australian government regional minerals program—RMP—administered by the Department of Industry, Tourism and Resources. The study states —

The objective of the RMP is to encourage a coordinated approach by industry and government to facilitate the regional development of mining and mineral processing activities (including petroleum) and promote regional employment opportunities.

The purpose of this study is to consider future minerals and energy development in the West Kimberley in order to facilitate processes for planning, infrastructure provision and local involvement. In particular, the study examined the requirements for infrastructure to support major resources projects.

The West Kimberley is a large area in the north west of Western Australia with significant but largely unexploited mineral and energy resources. The area is also a region of great aesthetic, environmental and cultural diversity and significance. Development therefore must be undertaken in a manner that protects the area’s values as well as ensuring that the industries that utilise them are not compromised.

The study area includes the Shires of Broome and Derby–West Kimberley and the western portion of the Shire of Wyndham–East Kimberley.

Item 7 on page 62 of this document is where we see for the first time the notion of the Browse Basin natural gas development potential. It deals with a number of issues and states —

Options for commercialisation of natural gas resources can be categorised according to the products produced and sold and the method used for transporting the natural gas to market, as follows:

1.       Natural gas delivered by pipeline;

2.       Natural gas delivered as … (LNG); and

3.       Other products derived from natural gas.

The document also goes on to identify some of the downstream processing that would be expected to arise from that natural gas development. Having read the bill, the minister has now ruled those out, but one never knows because the blueprint was here. It talked about methanol, ethane, dimethyl ether, ammonia, urea, LPG and many other components. It also identified the potential for developing a pipeline from the Dampier Peninsula down across the Fitzroy to South Australia. It identified the development of uranium in the area in the Oobagooma lands. It identified the development of bauxite mining around Kalumburu and the Mitchell Plateau and identified the presence of coal in the Canning Basin. This, in essence, was the blueprint we are still working through.

What was then immensely interesting is that suddenly the tone of debate and communication with the Sarubins changed. Everybody had been working towards them having an agricultural lease in the area but suddenly things started to change. Indeed, even though the lease had been granted for a further 21 years, expiring on 24 July 2008, actions were then taken against Mrs Sarubin and her property to confiscate the property because she was not using it for mining purposes. All the preceding letters said, “We don’t have a problem with you not using the land for mining purposes because you’re not allowed to because of the caveat over the area by the Department of Indigenous Affairs”; that appeared in the Government Gazette, as I previously mentioned. Suddenly, unfortunately, Mena Sarubin, who had a property in that area—she had grown mangoes there and had two small houses on the property—was forfeited, without compensation or anything else, yet every piece of evidence until that point indicated that she would be allowed to stay there and develop the horticultural lease. The letters from previous ministers and Premiers had all agreed that there was not a problem. Jim Limerick said there was not a problem because he could see no functional use for that land. It all started to change in about 2005.

I now want to deal with the issues around this matter and how it all changed. In 2009, Gary Simmons sent an email to Ray Dawson on this matter, which stated —

Could you please look at the file for this tenement and let me know how forfeiture/relinquishment of the lease is going.

I need to know quite urgently as it is situated in an area close to the proposed Kimberley LNG location.

That was in July 2009. The next email states —

Hello Gary,

Unfortunately action to forfeit/relinquish has not yet commenced. It was held off late last year for a number of reasons, State election, new Minister etc, and then Xmas.

I have it earmarked for the acting Manager of Compliance to get their teeth into which will be late next week.

The next one states —

Thanks ray … things will hot up over this lease and it should be a high priority to relinquish it …

An email from Cecilia Smith to Bob Stevens states —

I’ve heard nothing since I sent my follower email to Cecilia. Do you know if there has been any response or reaction by the family to the letter to …

I assume Mena Sarubin, as there is redacted information in this material. It continues —

I would still like to see the lease simply surrendered rather than DoIR pursuing forfeiture … our way ahead will depend largely on whether or not the family finally accepts the situation as clearly stated in the letter to …

I’ll await your update.

This is an email from Murray Raven to Bob Stevens —

My view is that the Sarubins will not do anything unless pushed, my advice is to proceed with forfeiture which in turn may bring on a voluntary surrender.

On 11 April 2008, the Minister for Planning and Infrastructure, who had supported the retention of this lease for horticultural purposes and had made representation to all the other ministers in support of that, stated —

… Careful consideration has been given to the issue but given the strategic location of the site for the State no tenure under the Land Administration Act 1997 will be contemplated.

So, it was a complete reversal of the position. In an email from Bob Stevens to Cecilia Smith and Murray Raven, Mr Stevens stated that obviously there were problems because of the previous commitments to allow the people to remain on the site. He went on to state —

In light of the above, do I now need to soften DoIR’s hitherto assertive request to the family that they must surrender the lease or face forfeiture??

Eventually they did face forfeiture, but it seems bizarre that, in all of this, although everybody had gone out of their way to allow them to retain the lease, it was suddenly to be forfeited. Finally, an email from Bob Stevens to Cecilia Smith states —

So, in view of the foregoing, there really isn’t much more that DoIR can now do to pursue or cajole an early surrender of the lease (which they obviously see as their bargaining chip in the compensation negotiations). Regarding the alternative option of forfeiture, they are all well aware that DoIR could not even initiate any forfeiture action until late September 2008 (or possibly a little earlier—depending on when … any justification for forfeiture will have to be based on “deficiencies” as reported on the Form 5.

My understanding is that all form 5s have been completed within the letter of the law and that there was no ability to forfeit under form 5.

Now I come to the next stage. Mena and Markku have been moved out of the way and they have had to forfeit and can no longer remain in the area. Alan Carpenter said that there would be no compulsory acquisition. Eric Ripper, the then Deputy Premier, Treasurer and Minister for State Development, announced in October 2007 —

The Northern Development Taskforce, announced by the Minister in July, was established to ensure the unique environmental, cultural and heritage values of the region were protected alongside any development of gas resources.

“The Government’s aim is to work with gas processing companies to ensure development is balanced against the exceptional environmental, cultural, tourism and heritage values.”

Mr Ripper said the taskforce represented the Government’s commitment towards ensuring the best possible outcomes for everyone affected by development in the Kimberley.

I ended up being a member of the Northern Development Taskforce, representing the Mineral Policy Institute, and it was an interesting time because a number of things went on that led to the current Premier making statements based on fallacies. Again, I would have thought that the Department of State Development would have advised him of that, but it seems to have been giving him a bum steer all along.

The site selection process consisted of stage 1, a review of the draft site selection criteria and consideration of a shortlist of sites, based on available information; stage 2, identification of a preferred site; and stage 3, consultation during strategic environmental assessment processes for the review of a preferred multi-user hub site and the review of national heritage values. These were the components of the selection process that the Northern Development Taskforce was supposed to undertake, but it soon became very clear that the terms of reference were very, very limited; not in terms of what was stated, but in the way in which the terms of reference were applied through the Northern Development Taskforce.

I turn now to the minutes of a meeting of the taskforce on Thursday, 13 December 2007. Duncan Ord was the Chair; his name comes up several times. The NDT representatives were Gillian Gallagher, Gary Simmons and Jim Vanopoulos. Gary Whisson represented the Department of Environment and Conservation; Paul Gamblin, WWF; Maria Mann, Environs Kimberley; Peter Robertson, the Wilderness Society; Hugh Brown; Jeff Ralston; and Chris Tallentire, Conservation Council. Under paragraph 2, “Terms of Reference”, the minutes read, in part —

The main “deliverable” of the West Kimberley Division is regarding the issues of selecting a potential hub site. Noted that the Taskforce is not required to consider alternatives to on-shore gas processing (i.e. offshore, gas piped to the Burrup or Darwin), although the engineering study will look at practicality of alternatives.

That was not the intent of what was laid down in the guidelines we all signed off on in the Northern Development Taskforce. Under paragraph 3.1, “Hub Site”, the minutes read, in part —

NDT explained that currently a number of sites along the Kimberley Coast are being looked at and the NDT is in process of short-listing technically feasible locations.

We dealt with many such locations; if I remember rightly, there were 41 initially. Paragraph 3.1 continues —

Noted that it is the view of some of the Working Group that they would prefer the site not be on the Kimberley coast but in the region between Broome and Burrup whilst conferring benefits on the Kimberley Indigenous population.

These are interesting minutes, because they were actually challenged later. It was noted that it was in the view of “some” of the working group; I can assure members that it was a majority of the working group. The paragraph continues —

NDT is open for any suggestions of potential sites as long as they meet the technical threshold criteria.

Discussed potential of locating the hub in the Pilbara but with benefits package to confer on both Pilbara and Kimberley Indigenous population, NDT explained that this was highly improbable given lack of agreement on sharing benefits of mining royalties in the Pilbara.

Those quotes came from the minutes of Thursday, 13 December 2007. I turn now to the minutes of a meeting held on 12 February 2008. By that time, Malcolm Douglas from Broome had joined us. Paragraph 2.1, “Clarification of NDT Role”, reads, in part —

The Chair provided an overview of EWG —

Environment working group —

functions, emphasising that within the parameters outlined by Cabinet, the EWG’s role is to assist with the identification of a hub site in the Kimberley should a suitable site be found. It does not involve endorsing Kimberley LNG processing over other option such as gas to Burrup and offshore processing. EWG members were invited to leave the process if they felt it was not something they were comfortable being a part of.

Some group members were in favour of the scope being expanded to include the Pilbara. The Chair advised that for the EWG’s role to extend beyond the Kimberley the NDT Terms of Reference would need to go back to Cabinet for alteration. This is possible provided Cabinet are supplied with relevant information.

Under the heading of “Discussion of Sites”, the minutes read —

The Chair showed to the group NDT maps which show evaluation of possible sites from a technical perspective, as well as overlays of indigenous heritage and evironmental values. Woodside have narrowed down their list of possible sites using a fatal flaw analysis. A key aspect of the Engineering Study currently in progress with Gaffney Cline is to rigorously test the criteria used by Woodside and INPEX in their evaluation of sites. Gaffney Cline have been chosen for their independent status and extensive international experience in onshore and offshore gas hub projects. The Chair has advised Gaffney Cline that advice and input from the EWG is available, and will discuss at his next meeting with them.

Question as to whether the hub is mandatory. The Chair responded that it is intended for the hub to provide the alternative around which other approvals would be denied. However this does not prevent companies from applying through other legal processes, such as Inpex with the Marets.

Cockatoo and Koolan Islands, and King George Sound …

On Thursday, 17 April 2008 a change to the previous minutes was requested. The change was —

Overall the group (with the exception of the KLC), agreed that they were concerned about a perception of a predetermined outcome around the site short list program, and that there needs to be opportunity for broad public consultation around the September decision.

What was interesting was that at that meeting I requested that the report titled “Developing the West Kimberley”, which I have previously referred to, be tabled. The minutes continue —

The Chair mentioned that the hub project is a “pilot” for the State and by following this process in the future will stop ad hoc development of projects.

What was clear from that meeting was that even Duncan Ord was unaware of the 2005 report that had identified the development of the West Kimberley. The identified proposals at that stage were Bigge Island, Coulomb Point, Cape Leveque and Fisherman’s Bends; out of the 43 suggested locations, those sites were technically viable. We also need to know that Pearl Seas Cruises decided it could not take the continuing control of the meeting by State Development, and resigned from the committee. Mr Jeff Ralston wrote —

I wish to advise you that I am terminating my association with the Northern Development Taskforce due to the way that sight selection has been put forward by the taskforce. I feel that there has been a lot of money spent on the interim report and Gaffney, Cline reports. In my opinion you have not included all the hub sights in your consultation during your workshops. I think that all the options should have been available or made clear to all the participants that there are other options. that can be considered. I.. do not wish to have my name involved when the media and local community scrutinise the NDT for their lack of consultation

That was sent to Duncan Ord on 21 July 2008.

What actually came out of it was interesting. The Gaffney, Cline and Associates report eventually came out, and the committee had to rank the sites. The majority of the committee refused to rank the sites because none of the sites were acceptable. The Conservation Council, Chris Tallentire and I, Jane Crouse from the Australian Conservation Foundation, and number of other people, all basically said that this was push-polling: “You’re saying it has to be here, here or here and you want us to rank them.” So, the majority of that committee did not rank them, but the government departments did rank them. Those government departments ranked them in favour of the four remaining sites, which are the sites that are quite often referred to by the Minister for State Development and the Premier as being the determination of the Northern Development Taskforce. Basically, the Northern Development Taskforce did not make comment, to a large degree, on those sites; its members refused to. It has been identified, again, that the whole process had refused to expand the sites. But what is interesting is that at the same time, the federal minister, who at the time was Peter Garrett, determined that at a federal level, he would expand the site selection.

In terms of the likely site for a gas hub, it is interesting to note that North Head was the original site chosen by the Premier. Indeed, that site was also identified in the Broome Advertiser on 23 October 2008. The article reads —

There had been widespread speculation Mr Barnett would disband the NDT after criticising it for adding uncertainty to the site selection process. But he last week confirmed the taskforce would continue with a narrower brief.

“They will work exclusively on the site selection issue,” he said.

“As to the wider issue of the long-term future of the Kimberley, that is something that has to be done across the whole of Government.”

Save the Kimberley director Robert Vaughan said his group would not support development at either North Head or Price’s Point.

“Gourdon Bay is the only one that could stand a chance but to be honest it doesn’t feel right for us.

“We should be looking at a floating refinery or piping it to the Pilbara where there is already infrastructure.”

It is rather telling that that was back in 2008, and, as we know, yesterday at the BHP Billiton annual general meeting, there is now talk again about BHP using its influence and sending the gas back down to the Pilbara. Also, we are aware that Ann Pickard, from Shell Australia’s perspective, is now quite openly trumpeting the idea of floating LNG. That will make it rather interesting in the long term for Woodside’s decision in mid-2013, when now, as a minority shareholder of its own project, it has the other partners wishing to go somewhere else. In an article in the Koori Mail on 22 October 2008, the Premier and Minister for State Development said that the four sites earmarked having met the criteria are Gourdon Bay, south of Broome; James Price Point and North Head, which are both on the Dampier Peninsula; and Anjo Peninsula on the far north Kimberley coast.

That is how we have been led to this process. I now turn to elements of one of the issues about the current process. If members go through the bill and the heads of agreement, very little in either of those deals with environmental or heritage values; in fact, the word “heritage” is missing entirely from the bill.

We know that in the heads of agreement—I will deal with that shortly—there are some issues of heritage. When we look at the heads of agreement, we see that it is very, very similar to the Burrup and Maitland Industrial Estates Agreement Implementation Deed and even contains two clauses within that bill that give me considerable concern on behalf of all Indigenous people in the region.

Let us come back to the current Environmental Protection Authority process. Obviously, we know that has been pretty roundly condemned as flawed. Indeed, even the new process to open up the Woodside development as a derived proposal gives serious concern, because there will be only two members on the EPA who can make the decision about whether it is a derived process. Even though one person has been replaced, only two people on the EPA do not have pecuniary interests in the Woodside development.

It is really interesting that it is no longer a derived process in many regards; the minister in not agreeing to the EPA’s determination on the reporting of CO2 emissions and going against the recommendations of the Appeals Convenor in enhancing those CO2 reporting provisions identifies, in our belief, that it is no longer a derived proposal. Those elements will need to be dealt with separately from the principal strategic concept. It is really interesting that EPA guidance statement 5 identifies that it must demonstrate contemporary practices defined in that guideline for all construction operation impacts—for example, atmospheric emissions, marine emissions and noise. This plant will emit a whopping 41 million tonnes per annum with no abatement plan. Therefore, those elements of the development will need to be dealt with by someone. Quite clearly, they have been moved from the strategic assessment and now they will need to be dealt with by some other process, whether that is a federal one or a state one. As a derived proposal those will not be able to be dealt with publicly. Therefore, it was quite foolish of the Minister for Environment to remove both the EPA’s recommendation and to a degree the Appeals Convenor strengthening of emissions requirement in section 22 of the EPA’s environmental statements.

It is also important that this bill states in clause 1.2 —

(c)           Nothing in this Agreement shall be construed to exempt the parties or any other person from compliance in connection with the protection of the environment arising out of or incidental to their activities under this Agreement that may be made pursuant to the EP Act, CS Act or the Act that ratifies this Agreement.

Therefore, the agreement by its very nature states that it should not be a derived proposal. The agreement states that indeed we will adhere to all the rigorous environmental aspects under this agreement.

The climate change emissions from this development will be demonstrably large. What is really interesting is that we now in this state take no responsibility for that, either by ministerial statement or by the Premier himself. I quote from an article in The West Australian of 28 November 2012. The article is headed “Barnett ‘accepted’ carbon tax for NW”, and it reads in part —

The Barnett Government could never again question the legitimacy of the carbon tax after using it to remove greenhouse conditions from the Kimberley gas hub, Climate Change Minister Greg Combet said yesterday.

A liquefied natural gas processing plant last month became the first major project since the late 1990s to be given WA Government approval without greenhouse conditions after Environment Minister Bill Marmion decided it did not need them in light of the carbon tax.

Emissions are emissions. I do not care whether to a degree they are covered by a carbon tax, or whatever. This state has a responsibility for its emissions. But, again, I am shocked to find out that it really does not. It is clear from the recent climate change strategy report that this state does not see CO2 emissions or, indeed, any other emissions, as being our responsibility. The strategy is a perfect example of the government’s position on climate change. We are only now seeing the outcomes of the process, which have taken over four years to complete. This document basically says, “We will not do anything about them; it is not a problem; we will basically just try to mitigate them.”

The Western Australian government’s role in climate change mitigation, or, indeed, abatement, needs to take account of the national and international context. But the government is completely burying its head in the sand on this issue. I go back to my question without notice 953 of 14 November, to the Minister for Mental Health representing the Minister for Environment, which was about the removal of condition 22 of the report and recommendations of the Environmental Protection Authority with regard to the Browse liquefied natural gas precinct, which required the proponent to prepare a greenhouse gas abatement plan. The answer was in part —

(1)–(3)  The Department of Environment and Conservation provided advice to the Environmental Protection Authority in the course of its assessment of the Browse liquefied natural gas precinct. The EPA’s report to the Minister for Environment—No 1442 of 16 July 2012—represents its advice to the minister. DEC also provided advice in relation to appeals to the Office of the Environmental Protection Authority.

The office of appeals at the Environmental Protection Authority obviously did not listen to DEC, because it determined that we should enhance those emissions.

The answer goes on to say —

Western Australia, like other jurisdictions, is undertaking a complementary measures review and will report to the Council of Australian Governments. DEC is coordinating Western Australia’s review, which will be subject to cabinet consideration. One of the measures under review is greenhouse gas mitigation conditions under part IV of the Environmental Protection Act.

(4)          The Minister for Environment considered matters raised in appeals regarding proposed condition 22, the appeals committee’s report, and advice provided by the Environmental Protection Authority under section 106(1)(a). Based on these matters, he considered it appropriate to amend this condition. It should be noted that the minister is not bound to follow the advice of either the EPA or the Appeals Committee.

One wonders why we have those bodies if the minister is not going to follow their advice.

In report 1444 of July 2012, which ran for some three pages and which was actually a really good overview of what we needed to be doing, all the issues in relation to condition 22 on greenhouse gas abatement were removed by the stroke of a pen. The report in October 2012 to the Minister for Environment on appeal numbers 061 to 304 of 2012 states —

·          In relation to greenhouse gases … Condition 22-7 is amended to read “independent specialists approved by the CEO to review the draft Greenhouse Gas Abatement Program prior to its approval and assess …”.

This was an enhancing of condition 22, and I must commend the Appeals Convenor for having gone down that path.

Why should we be concerned about emissions from this plant? We in Western Australia do not have a lot of gas. I think I am right in saying that we have around 1.8 per cent of the world’s supply. According to BP, our gas at current exploration rates is projected to last around 42 years. But what we are doing is getting this gas out of the ground at immense speed, and because we are converting it into LNG rather than using domestic gas, we have an incredible emission load associated with that. It means that WA’s emissions are going up by approximately three times our 1995 base figure.

I want to turn to the issues around the development of the heads of agreement. The heads of agreement, in large part, reflect some of the issues around the Burrup and Maitland Industrial Estates Agreement. There are two components of that heads of agreement that give me some concern. They are similar to, if not mirrored by, clauses 4.8 and 7.2 of the Burrup and Maitland Industrial Estates Agreement. The notion in that heads of agreement is that once the agreement is signed, heritage values are purely at the determination of the proponent; in this case the proponent is the Department of State Development. Clause 4.8 of the Burrup and Maitland Industrial Estates Agreement reads —

On and from the Satisfaction Date, the Contracting Parties agree that the Contracting parties will not, in their capacities as owners of the Burrup Non-Industrial Land, lodge or cause to be lodged any objection to development proposals intended to occur on land within the Industrial Estate.

Clause 7.2 reads —

The Contracting parties hereby agree that, subject to this deed, the State is entitled to compulsorily acquire any and all native title rights and interests in the Industrial Estate in accordance with the Land Administration Act

Those clauses, to a large degree, are contained in a slightly different way within the heads of agreement, and we have to remember that the bill we are dealing with relies on the heads of agreement as its driver.

It is important to note that at a special meeting of the Aboriginal Cultural Material Committee in Karratha on Thursday, 20 July 2006, it became apparent that the Indigenous people were not fully conversant with the nature of this clause. The minutes of the ACMC meeting in Karratha identify that the ACMC was asked about the signing of the Burrup and Maitland Industrial Estates Agreement. The community representative acknowledged that it had signed agreements that allowed for the development of the Burrup.

Sitting suspended from 1.00 to 2.00 pm

Hon ROBIN CHAPPLE: Before lunch, I had referred briefly to the Burrup and Maitland Industrial Estates Agreement —

Hon Robyn McSweeney: Briefly!

Hon ROBIN CHAPPLE: I referred to the BMIEA very briefly.

At an Aboriginal Cultural Material Committee meeting on Thursday, 20 July 2006, Aboriginal representatives stated that they were under the belief that heritage surveys would be conducted prior to any ground-disturbing activities. The essence of that was contained in the two clauses I have already talked about.

I now refer to “Annexure ‘GJH-2’”, which was the agreement involving Rita Augustine on behalf of the Goolarabooloo–Jabirr Jabirr People in the Federal Court of Australia. This is basically the heads of agreement that relates to this bill. Part 17 relates to “Native Title Party Commitments”—this is almost by way of a question. It states that they —

… will not object to the development in circumstances where the State and any proponent have complied with the obligation in clauses 11 and 15 of these Heads of Agreement.

Clauses 11 and 16 only identified that “where possible” Indigenous people will be communicated with in relation to heritage matters. Clause 15 also refers to “where possible”, but they abrogate their responsibilities through clause 17; that is, there is no requirement for the developer of the site, or indeed the proponent, to go back to them by the nature of clauses 11 and 15. I tried to seek clarification of what heritage compliance will actually occur. In essence, those are the same clauses which actually stopped Indigenous people having any further concern or control over the Burrup—in this case, the James Price Point site.

In terms of the bill, I hope to ask a few questions in committee. Knowing there are other members who wish to speak, we need to get on with the committee stage; I think that will do me.

HON JON FORD(Mining and Pastoral) [2.04 pm]: After that, I need to make it clear that we are actually debating the Browse (Land) Agreement Bill 2012, which the opposition supports. I will reflect on the bill briefly from a personal perspective. One of the things that I have come to realise in the 12 years that I have been doing this job is that it is very easy in this job to become patronising in the way we deal with Indigenous people—that is, that I have to somehow find a solution for everything that is wrong with what they do, because they are not capable of looking after themselves and they are not capable of getting into the new economy. One of the problems that we have had over years and years and years is this very colonialist attitude that somehow we need to be responsible for Aboriginal people; indeed, we had an act that empowered a custodian to look after Aboriginal people. It is a big lesson to learn. Yes, Aboriginal people, to our shame, have a lot of issues that need to be dealt with, but one of the most important things that we do as a Parliament and in government is to build capacity for Indigenous people to reach that goal of self-determination. That, after all, was the basis for the Native Title Act—to give Aboriginal people the same basic economic unit that the majority of people of European descent have the capacity to have. We can buy land, it becomes ours and we can pass it on to our children. That gives an economic capacity over time to build wealth in families and along with it opportunity in contemporary Australian society. That is why we are a First World country, not a Third World country. Unfortunately, most of our Indigenous population live in Third World status. Therefore, I commend the government for bringing this bill to the house.

Personally, I do not like the idea of having an LNG plant at James Price Point. I went up there with Senator Pratt and Hon Sally Talbot and we were eating oysters off the rocks at sunset thinking to ourselves, “What this place needs is a whacking great big LNG plant”! That is how I feel personally, but for me to take that next step and object to people who have a proven right, who have been given a recognised right that that is their traditional lands, that somehow they should not have a right to make a decision on how that land is used, would be very patronising and very arrogant of me. The contribution to the debate we just heard from Hon Robin Chapple actually makes me very, very angry. It makes me angry because there is a whole bunch of patronising assumptions that are not correct. He would have us believe that the traditional owners up there did not know what they were doing, that they are not aware of their heritage and that they did not debate it; in fact, that their debates were invalid because, in his own words, “This is not how Aboriginal people make decisions in regards to taking a vote”. What a load of nonsense! There are over 80 different language groups in the Kimberley region alone. What Hon Robin Chapple said is a fundamental mistake. There are not just 80 different language groups or 80 different families; before we came along, it was like Europe, with 80 different nations that had very complex relationships. There were political industries and political marriages—the whole gamut that we see in Europe. Interestingly enough in the Kimberley to this day, it is probably, without some areas in the east of the Northern Territory, where law and culture is still very strong amongst a lot of people. I have been very privileged to attend many of those meetings. I will not imply that I have any authority to speak on their behalf about who is and who is not a traditional owner. I will not even try to tell members what a songline is. I have a pretty good idea about what it is, but I have no authority to talk about it. At any rate, it would be only my observation. As Hon Robin Chapple said, he is not a man of law and neither am I, in an Indigenous context. What rubbish it is to infer some authority to speak on behalf of any Indigenous Australian in a manner that implies one person is right over another and to present petitions that are purported to be from the real Goolarabooloo Jabirr Jabirr. Will the real TO please stand up? I have talked about this in the house before.

What we have seen in regard to James Price Point is the hypocrisy of the Greens. It is divisive. I have watched families suffer hatred from the community. Wayne Bergmann’s family has been threatened, his kids were in tears at school and there have been inferences in the community and the federal Parliament that somehow he has acted corruptly because of the questions and assertions from the Greens in their desperation to try to find out that something is corrupt. It is nonsense and a disgrace. I have spoken in this house before about the hypocrisy of the Greens on the topic of whales. The poor old whales! I have read tweets from Greens Senators about the poor whales off the coast of Queensland and New South Wales. There are whales over there too. They go up and down the coast but I do not hear the Greens talk about closing down Gladstone or Sydney. If just once in this Parliament I could hear the Greens talk about the kids in Western Australia who are starving, I would give them some credibility.

Hon Robin Chapple: You obviously haven’t listened to my questions.

Hon JON FORD: The Greens members pick off people for their own short-term gain. I have a picture of Koolan Island off the pristine Kimberley coast just across the way from the Horizontal Falls. Where is Koolan Island? It is right across the road from Camden Sound. Where are the arguments about closing down Koolan Island? Where is all the national talk about that? The Greens should be getting up and demanding that Indigenous people have a claim to it and that the acts around that island should give Indigenous people a better slice of the pie. The Greens do not talk about that. What about the three floating production storage and offloading facilities?

Hon Robin Chapple interjected.

Hon JON FORD: I sat here and listened to your rubbish!

The DEPUTY PRESIDENT(Hon Brian Ellis): Order, members! I think Hon Jon Ford should be given the same respect as the last speaker was given for three hours without interjection.

Hon JON FORD: We have three FPSOs hanging off Exmouth. The whales happily dodge their way around them. They work their way up past all the oil rigs, the exploration rigs, the survey studies and the most voluminous ports in the country. They weave their way past Broome and dodge the tourist boats that go over the top of them—they are the real danger—and work their way up to Camden Sound to do what whales do, and then they work their way back again. Where is the evidence that all the ports and all the production they go past endanger those animals? It is exactly the opposite. We are getting more and more whales, happily. We even have special squads that go out and cut the whales free from rock lobster pots and other things that they become entangled in. Those sorts of things happen more often because there are more whales. But we do not hear that same sort of protest about James Price Point.

Thousands of hectares are being cleared across this country, particularly in the Kimberley, which imposes a much greater environmental threat over a much broader area, especially the areas in the Fitzroy River catchment. What do we hear? Not a peep. I have been watching these things get bigger and bigger over the years that I have been representing the area.

The Ord expansion has a much bigger potential to damage the environment with run-offs. Lots of very valid questions have been asked about how flow-offs are managed and about the chemical and fertiliser loadings and how they need to be treated. We have not heard a peep from the Greens about this.

I am angry because I have seen lots and lots of people hurt. It is all right to get up in this Parliament and talk about senior law people. I could stand here and use a lot of Aboriginal words that would make it sound like I have some sort of authority. In fact, I was going to open my speech with a few. The only problem is that I would have to explain the spelling to Hansard.

How traditional owners carry out their business, particularly in the Kimberley region, is their business. It is very complex and very sophisticated. Hon Robin Chapple referred to a whole bunch of documents that said Mr Roe was the primary authority. That might have been the case in those times but I have also been there when they changed the spokesperson, depending on the issue and depending on what that person has been saying and whether they are speaking with authority or not. There is more than one boss in the Kimberley. We should be congratulating him because for the first time ever in negotiating this deal, they negotiated a deal that gave benefits right across the Kimberley, which is twice the size of Victoria. It is bigger than the European Union. That is a great philanthropic achievement. Traditionally, the localised family gets the benefits. But there is nothing in that. There is no talk about independence or self-determination in the Greens’ arguments. Their only response to that is that the government should supply them with the same benefits as everybody else. What a load of baloney! These are people who are sick and tired of being under government control. I give people up there money to assist them in their day-to-day lives, and they look at it as government money because I represent the government from their perspective. They would not understand. Unfortunately, a lot of these people do not understand what it is like to be a white Australian—to own a house, to have superannuation, to be able to buy a car, to choose where their kids go to school and to choose what they want to do in the future. That is why the Labor Party supports this bill. For the first time in Australian history, and for the first time in Western Australian history, this opens that door. Hopefully, it will give these people the opportunity to have real self-determination. It already has because philanthropic companies—Aboriginal companies—have cropped up that are getting into the real economy and negotiating with companies. I get phone calls now for the first time ever. For the past two years I have been getting phone calls from Indigenous corporations asking me who I know in Rio Tinto to talk to because they have a business proposition. That is what this deal has opened up for people. As I have said, I am sorry that they picked James Price Point. I probably would have made a different decision, but it was not my decision to make. So, I might get on with some other things.

Unfortunately, we have found ourselves in this position because we have opened a door, and the Premier has some responsibility in that. He opened a door to dissension because, whether or not he tried to, he was seen to close the door on community consultation. I will read from an article entitled “Kimberley owners shortlist Browse gas hub sites” in The Australian Financial Review of Wednesday, 10 September 2008. It states —

Traditional owners in the Kimberley have narrowed the shortlist of potential sites for a major gas hub to serve the Browse Basin, but a cloud hangs over the future of the project because of the uncertainty over the election outcome in Western Australia.

WA Liberal leader Colin Barnett claimed in the lead-up to the state election that the Labor government’s consultation process for building a hub in the Kimberley would result in Inpex moving to Darwin.

But the Carpenter government has insisted it would stick to its consultation process—in conjunction with the federal government—which includes giving traditional owners of the region input into what sites might be chosen for development.

I hold the Premier co-responsible for what has happened up there. It was a silly thing to threaten compulsory acquisition. It was a silly thing to interfere in the process by picking one location and then another location and then another location. It created uncertainty. It also made Indigenous people feel that they were under threat—indeed, they were under threat—that perhaps they did not have a choice and that perhaps they needed to settle for second best. So that was a problem.

As we moved through the years, we saw Minister Martin Ferguson and Hon Colin Barnett, our Premier, threaten the companies with a “use it or lose it” threat and that put the resource sector’s back up. This opened up the gate for a very divisive debate between the people who wanted to stand and fight and who had legitimate reasons to do so and those who wanted to take hold of what they saw as an opportunity. But, in the end, a deal was struck and the traditional owners picked the site and agreed to it, with a whole bunch of conditions that are contained in the Browse (Land) Agreement Bill 2012 that we are debating today. This has nothing to do with Woodside. This is about a big parcel of land for development in the future. If people think that if Woodside moves to floating liquefied natural gas or builds a plant or moves the plant and somehow moves away from the area, there will not be other proponents there, they are silly. There are hundreds and hundreds of years’ worth of gas in the Canning Basin, and there is lots and lots of gas offshore that will need to be processed in one way or another. Indeed, if we end up with a floating liquefied natural gas plant, depending on the liquids—I do not know what the product specification is—it is foreseeable that we could have LNG being shovelled off a floating LNG vessel offshore and the liquids being piped to the beach and then needing some processing, depending on what the product is and how the company wants to process it.

Strangely enough, I agree with the Premier on his recent stand on floating LNG. From a technical perspective, floating LNG is very, very high risk. We are talking about temperatures of minus 165 degrees Celsius at a 600 to one reduction; that is, one litre of liquid equals 600 litres of gas. Therefore, if there is a spill of one tonne of liquid, we end up with 600 tonnes of gas and a catastrophic explosion. I am not saying that will happen, but members should think about it. I used to supervise an LNG off-take facility. One vessel was anchored to the ground and the other one was floating by its side, and I can tell members that that was pretty risky. There were lots and lots of technical mitigations in there to deal with the issues of separation—that is, if the vessel needed to get away quickly or if there was a catastrophic failure on the beach or on the vessel. When there are two floating vessels of quite considerable size next to each other, that is a very, very big risk.

Hon Ed Dermer: How close would the two vessels normally be?

Hon JON FORD: Does the member mean when they are actually loading?

Hon Ed Dermer: The two vessels, side by side.

Hon JON FORD: They are within metres—just a few metres.

Hon Ed Dermer: A few metres?

Hon JON FORD: Yes—maybe eight to 10 metres.

Hon Ed Dermer: It sounds like an unsafe protocol to a layman.

Hon JON FORD: Everything has its risks, and technically we can mitigate all those risks. But, more importantly, if we allow the federal government and those project proponents to build those tankers, the feds get everything and we get nothing; there is nothing for Western Australians. That is what happens. There are no jobs. Everything can be built away and floated in there. In fact, nobody will ever see the things unless they are close to the beach. So, I join the Premier in saying that the last thing this state needs is a floating LNG facility. There are also problems with length of pipeline.

We have a funny situation. Inpex Corporation has built its LNG plant in Darwin, and now it has to get its gas to the plant. I will be interested to see how it overcomes the technical difficulties of getting that gas and, in particular, dealing with hydrates and liquids over that length of line. Again, it is technically feasible, but it will be interesting to see how the sums would have added up. Why is it important for the sums to add up? It is important for attracting investment in a very difficult environment. Some people might be happy if that investment goes away but, as I said in my opening statement, I want to see resource projects develop in Western Australia and I want more of these deals that allow traditional owners to get involved in self-determination and in economic development.

I was going to say a whole lot more today, but I am not going to, because other people want to talk and I want to hear their contributions. What I want to say is that when people criticise these agreements, and when people make assertions that somehow the Premier was not made aware of an obscure document or one of a billion reports, I can assure members that some bureaucrat who has expertise in the area has made an assessment of it and made a judgement on that document. Then that has gone to that bureaucrat’s supervisor, who has looked at it. Those assessments are made, and, based on that good process of assessment, it is eventually taken to the minister responsible, who then writes a report to cabinet. Then, because of the democracy we live in, all those elected people, not just the minister, sit around the table and look at it, following the Westminster system, from all sorts of portfolio angles to make the best decision. And, yes, compromises are reached. It is not uncommon in environmentally sensitive areas to have offsets, and it is quite right to argue whether the offset is correct. But do not make an assertion that somehow somebody is missing information. It is the same as the assertion that traditional owners have somehow ignored the heritage value because they do not have the authority to deal with it, and therefore they need to be protected from themselves to protect their heritage.

I have confidence in our public service, and I am confident about the advice given to the Premier. I am not happy with all the decisions he made and how he ran the show, but he is the Premier. I have stood in this house and said on numerous occasions at great length where those problems are. But in the end we have an agreement, and I and my party are satisfied that it opens the door for self-determination. It will provide the opportunity of self-determination to a whole lot of people who have never, ever, ever had that opportunity before. So when very, very privileged people like Bob Brown, Missy Higgins and other people—people who, from an Indigenous person’s perspective, are just rolling in cash—get up and criticise people and ask who is the real traditional owner and say, “Let’s save the whales”, I get pretty upset, because they have no right to. It is like looking at another suburb and saying, “I don’t like the colour of their roofs; I’m going to mount a protest so they change it.” We live in the area we live in, and we should grab hold of opportunities given to us if we can. There will always be a divergence and a divided opinion on everything—always.

I must mention the Environmental Protection Authority process. One of the problems with the EPA process is the same problem as I said the Premier created for himself and his government; it is that even if the process is okay, the perception is that it is not. I met a great long-term couple in Broome recently. One of them has been in the mining game for about 15 to 20 years, I think he was saying, and he is absolutely deadset against the development of James Price Point for two reasons. The main reason is that it is the area where they recreate, and I have talked about that before. If I was a Broome resident, I would be pretty upset if I regularly frequented that area, because it is where they go camping and where they can take the kids on the weekend or go and sit there and fish and get mauled by midges. People can have a great time, and they do not have to ask permission to go out there. That was the attractant to get them involved. One of the people said to me, “I never wanted to be an activist”, but what really got them going was the EPA process, because they felt as though they had been completely excluded. That is a problem. Labor recognises those problems, as we did before when we were in government. Should we get elected, we will reintroduce the right of informed consent as a policy position for traditional owners, which is in fact a right of veto. We will re-look at the EPA process; in fact, we will allow the EPA to supervise exploration, which is not done at the moment. Therefore, the EPA can look at these processes to make sure that a proper assessment is done on exploration sites across the state. We will go into strategic assessments that will allow Joe Public to have a view on what should or should not be developed in their area and region. Part of that is to bring people back into the loop to try to avoid what has occurred. We will not be getting into personal arguments that incite hatred. We will not try to infer that people are corrupt merely because they have a different view from us. I tell all the young people I mentor within the Labor Party that the end never justifies the means, because if the means is corrupt, no matter how noble the cause, the result is corrupt as well. That is what I have seen with this campaign over James Price Point. It is a very, very corrupt, hate-driven, divisive and evil contest. It should never ever have occurred, and shame on those people who brought it on!

I will finish with a quote from Stephen Mills, from the Inside Story journal headed “It was time: Mick Young’s triumph, forty years on”, which reads —

Not only was the 1972 election a watershed for Labor, it also created the modern political campaign, writes Stephen Mills

Mick Young died in 1996 of leukaemia. For all that he stands as Australia’s first campaign professional, one suspects he would be uneasy about campaigning today. He always emphasised that market research was no substitute for policy. He would recognise the strategic, technical and financial imperatives of the contemporary party contest between his latest successor as national secretary, George Wright, and his Liberal counterpart, federal director Brian Loughnane. But as they prepare for the 2013 clash, he might remind them, as he said in 1986, that the greatest lesson of the It’s Time campaign was that “something of substance has to be there before it can be sold successfully to the public.”

I put it to members that there is something of real substance behind this bill. This bill is about giving Indigenous people the right of self-determination in entering into the real economy. I commend the bill.

HON WENDY DUNCAN(Mining and Pastoral — Parliamentary Secretary) [2.38 pm] — in reply: I paused because Hon Jon Ford said that someone else needed to speak. I also note that we are pretty short of time today. I have some quite copious notes here to use in recognition of the very detailed work that Hon Robin Chapple has done in describing the whole history of how we have got here today from back in the 1970s—a lot of it perhaps not really relevant to the Browse (Land) Agreement Bill 2012 before us. In view of time constraints, I will not respond in detail and will perhaps use the Committee of the Whole stage to do that.

I also acknowledge the comments of Hon Jon Ford. He really has come to the crux of this matter; the bill before us today delivers for the first time the equivalent of a state agreement that has the Aboriginal people front and centre as stakeholders. I will quote Carol Martin, the member for Kimberley, who made some comments on this bill when it went through the other place. She really captured what we are talking about here today. In her comments on the bill she said —

… this is the first time I have ever seen a state agreement act that recognises Aboriginal people as key stakeholders.

She went on to say —

Aboriginal people need to take control of their own destiny.

Towards the conclusion of her excellent speech in the other house she said —

The next part, of course, is that James Price Point was identified by traditional owners. Can we get this right? We can blame the government as much as we want, but when it actually comes down to it, traditional owners actually do have the right to make decisions. This is a democracy; when people put their hand up for a vote and the majority say, “Yes, we want this location”, it is called a democratic process.

I refer also to the letter that Rita Augustine wrote to Dr Bob Brown, which was published in The West Australian of 8 August 2012. She writes —

Our people have had to make a choice about allowing development on our lands. It hasn’t been easy, but we have made a decision—a majority decision—to face up to our own challenges, and to build a better future for our children, our people, our culture and our country.

Dr Brown, it is hard for us to understand why you think it is necessary for you to speak on our behalf, about our country, our culture and our futures.

The only thing we need saving from is people who disrespect our decisions and want to see our people locked up in a wilderness and treated as museum pieces.

It is quite a long letter; if I had time, I would read more of it. I think that is the crux of what we are talking about here today. I must say that probably one of the greatest honours I have had as a member in this place occurred within a couple of weeks of me taking on the role of Parliamentary Secretary to the Minister for Lands. I went to Mt Barnett station when the Kimberley Land Council and the Kimberley Aboriginal Law and Culture Centre met for their annual general meeting process. Well over 1 000 people would have been there from all over the Kimberley, not only from the West Kimberley. It was there that they showed me the plan on which they had identified the original 43 sites. It was there that they talked to me about how they were refining that to a smaller number so that eventually they could give the government the message of their preferred location for this project. It was there also that I learned about the fact that the KLC was to be their representative body in these negotiations; the Indigenous people of the whole of the Kimberley supported this process and would support the outcome when it was reached.

I heard Hon Robin Chapple say at one stage during his speech that we cannot have it both ways, but in many ways I would like to say that back to the member and his colleagues, because I have a copy here of a joint position statement on the Kimberley liquefied natural gas development. It is quite long, but the signatories to this agreement are Wayne Bergmann from the Kimberley Land Council; Maria Mann from Environs Kimberley; Don Henry from the Australian Conservation Foundation; Paul Gamblin from WWF; Peter Robertson from the Wilderness Society; and Chris Tallentire from the Conservation Council. One of the items reads—it is very small print and I need new glasses too, Hon Jon Ford —

Recognising key environmental groups’ right to call for a single hub, while ensuring that Government and commercial proponents provide Kimberley Traditional Owners (through the KLC) —

which is very important —

with sufficient information regarding any proposed LNG-related development, including a single hub, as would enable them to give their considered assessment and advice regarding development options and impacts and, if they deem it appropriate, Traditional Owners’ informed consent to the development.

The debate today is about the land agreement and the terms of that agreement. The debate should not be about whose right it is to decide where that project should take place. I agree with Hon Jon Ford that identifying an on-land base for this project is the way forward for Western Australia and Australia. Not only are floating liquefied natural gas facilities eminently dangerous—“risky” is probably a better word to use, as Hon Jon Ford indicated—but also they deny the people of Western Australia and Australia the opportunity to earn royalties, and the opportunity to have jobs, and also, if these floating plants are far enough offshore, the opportunity to apply our labour laws and to make sure that the people on those facilities are well cared for.

Therefore, I would far prefer to see these plants on our land, where we can manage the environmental impacts and keep a close eye on how the Indigenous people and others working on the project are cared for. I will leave it at that point.

Question put and passed.

Bill read a second time.


The Deputy Chair of Committees (Hon Brian Ellis) in the chair; Hon Wendy Duncan (Parliamentary Secretary) in charge of the bill.

Clause 1: Short title —

Hon ROBIN CHAPPLE: The bill refers to the heads of agreement between the state of Western Australia, the Kimberley Land Council Aboriginal Corporation and Woodside Energy Pty Ltd. I want to go to clauses 11, 15 and 17 of the agreement to clarify what will happen with the heritage issues that are covered by that heads of agreement. Does the government have the ability to override the wishes of the Indigenous people, as clause 17 of the agreement would seem to imply? Clause 17 reads —

… where cultural, heritage and other considerations preclude such support, —

That is, support for the development —

will not object to the development in circumstances where the State and any proponent have complied with the obligation in clauses 11 and 15 of these Heads of Agreement.

Clauses 11 and 15 merely state that “where possible” they will manage heritage sites. That was clearly the problem with the Burrup and Maitland Industrial Estates Agreement. I therefore want to clarify that the parties to this agreement will have the ability to protect the heritage of this area.

Hon WENDY DUNCAN: The Heritage of Western Australia Act still applies under this project. Not only that, but also the individual proponents involved in the project, such as LandCorp and, say, Woodside or any other proponent that may be involved in the project, will have to complete a heritage plan and comply with it.

Hon ROBIN CHAPPLE: My understanding is that if the agreement is breached, it can potentially invalidate the agreement. This has been the problem with these clauses in the Burrup agreement; that is, Indigenous people are advised by the government that they cannot go back on the agreement that they have signed, which actually says in this case that they will not object to development in any circumstances. If they go for a section 18 application, they will be seen to be in breach of the agreement. Although the agreement states that they can use the heritage laws, the agreement in this case actually contains in it words that preclude that.

Hon WENDY DUNCAN: Can the honourable member identify again where he is quoting from, please?

Hon Robin Chapple: Yes. It is an annexure.

Hon WENDY DUNCAN: This document from the member, which I will endeavour to have returned to him, has been superseded now by the three agreements that we have signed off on subsequently from the heads of agreement. There is no breach clause in those agreements as the member identified in this document.

Hon ROBIN CHAPPLE: I would like to also take this opportunity to thank Gail McGowan and a number of her colleagues, Peter Baldwin and Ben Peden, in providing me with a briefing on the bill. In that briefing we asked a number of questions. The issues, I suppose, come down to the question we have been asking: if no offshore gas facility is available to that site, can onshore gas processing be used at the site? We have asked two parliamentary questions on that and both would lead us to believe that onshore gas processing can be facilitated through that site. The relevant clause in the Browse land use agreement is clause 8. It actually states that one or more LNG processing facilities could be built on the Kimberley coast—“Annexure 1—Map of the Kimberley Coastline”—outside the James Price Point precinct as long as the LNG facility was used to process gas from onshore, rather than offshore, fields.

Hon WENDY DUNCAN: There is nothing in the agreement that prevents the onshore processing of gas.

Hon Robin Chapple: Through the James Price Point facility?

Hon WENDY DUNCAN: Yes, through the James Price Point facility.

Hon ROBIN CHAPPLE: In relation to clause 7, what will happen in circumstances in which native title is determined in favour of anybody else other than the signatories?

Hon WENDY DUNCAN: The native title party is identified in this agreement as the claimant party. Should another native title party be identified as the traditional owner under the Native Title Act, the agreement would then apply to them; but if no claimant is identified, the Goolarabooloo–Jabirr Jabirr people will be the responding party.

Hon ROBIN CHAPPLE: Further to that, if there is a joint claim on behalf of Goolarabooloo–Jabirr Jabirr, Goolarabooloo do not want the facility and Jabirr Jabirr do, and Goolarabooloo become a native title party and Jabirr Jabirr do not, what are the legal ramifications when the Goolarabooloo do not want to be a party to it?

Hon WENDY DUNCAN: In the event of that situation, if a party does not wish to receive the assignment, they can decline the assignment.

Hon ROBIN CHAPPLE: Does the validity of the act or the validity of the agreement remain?

Hon WENDY DUNCAN: Yes, the validity of the agreement remains. It will not terminate the agreement.

Hon ROBIN CHAPPLE: Let us say that a party granted native title to that area were not party to this agreement, and the people who are party to this agreement were found not to be a native title party. Would benefits accrue to the people who are not a native title party, and what would happen to the native title party who was opposed to the development but determined to be a native title party?

Hon WENDY DUNCAN: The benefits of the agreement go to the administrative body, which is the Waardi organisation. That will remain.

Hon ROBIN CHAPPLE: I will try to deal with this all in the short title rather than go through the bill clause by clause, if that is all right with the Deputy Chair. Does the agreement allow for consideration of future LNG development on the Kimberley coast following a closure decision under clause 4?

Hon WENDY DUNCAN: Whilst the agreement remains on foot, that would have to come back through Parliament. Therefore, Parliament would be required to amend or repeal the act to allow this to occur.

Hon ROBIN CHAPPLE: Clause 4.3(a)(i) of the agreement provides that, subject to a continuous period of 10 years, there is no interest in land within the LNG precinct held by a proponent. What defines an interest?

Hon WENDY DUNCAN: Under the Land Administration Act 1997, “interest” is defined as —

interest, in relation to Crown land, means, except in Parts 9 and 10, charge, Crown lease, easement, lease, mortgage, profit à prendre or other interest, including such interests as are lawfully granted or entered into by a management body, and their counterparts under the repealed Act, but does not include —

(a)          care, control and management of a reserve, mall reserve or road;

(b)          caveat;

(c)           licence; or

(d)          mining, petroleum or geothermal energy right;

Hon ROBIN CHAPPLE: Clause 10 of the agreement deals with variations. Can the parliamentary secretary advise the extent of the powers for parties to vary the agreement, the ability of Parliament to debate any variations tabled and the mechanism for disallowance? There appears to be a disallowance mechanism.

Hon WENDY DUNCAN: The agreement is with a third party. Parliament has no power to unilaterally amend an agreement with a third party, so the variation clause is like that of the Barrow Island Act, for example.

Hon ROBIN CHAPPLE: So the variations are really in relation to the state and the representatives of the Goolarabooloo–Jabirr Jabirr peoples at any time, and it could be amended to do all sorts of things.

Hon WENDY DUNCAN: Yes, that is correct. There can be a variation between the parties that can come to Parliament. Parliament has the right to disallow.

Hon ROBIN CHAPPLE: Could I please be advised of the nature of how Parliament would disallow that? In what method does it come before the house and what are the limitations of variation?

Hon WENDY DUNCAN: It is interesting how we are dealing with all the clauses under clause 1, but hopefully we will get there!

Hon Robin Chapple: I don’t wish to go any further; I’ll just deal with it all here.

Hon WENDY DUNCAN: Okay. I just bring to the member’s attention that clause 10.2(b) of the agreement states —

Either House may, within 12 sitting days of that House after the agreement has been laid before it, pass a resolution disallowing the agreement, but if after the last day on which the agreement might have been disallowed neither House has passed such a resolution the agreement shall have effect from and after that last day.

That is really consistent with the Government Agreements Act. Did that answer the member’s question?

Hon ROBIN CHAPPLE: Not quite. How does that eventuate? Does it come up via the notice paper? Is it a process of the normal parliamentary debating cycle? Is it a new bill or amendment, or will it arrive via a regulatory method?

Hon WENDY DUNCAN: If it was a major variation, it would enter the house as a bill, but if it was a minor variation, it would be dealt with administratively.

Clause put and passed.

Clauses 2 to 6 put and passed.

Schedule 1 put and passed.

Title put and passed.


Reportof Committee of the Whole

Bill reported, without amendment, and the report adopted.

Third Reading

Bill read a third time, on motion by Hon Wendy Duncan (Parliamentary Secretary), and passed.


Greens Oppose Barnett’s Kimberley-to-Perth Water Plan

Greens Member of Parliament Robin Chapple MLC has condemned the Premier’s actions in once again talking up a plan to send water from the Kimberley to Perth, to alleviate water shortages in the south of the state.

“Mr Barnett made the statement during his visit to the East Kimberley last week, saying he stood by his belief that water could be piped from the Kimberley to address water shortages,” Mr Chapple said.

“The plan to transport water from the Kimberley to Perth was thoroughly investigated in 2006 by an Expert Panel who found the costs and hazards involved to be prohibitive.

“The Panel, which cost the WA taxpayers $4million, compared the costs and risks of transporting the water by canal, pipeline, ocean-going tankers and tugs towing giant water bags.

“The panel concluded that, regardless of which option was selected, householders would end up paying exorbitant prices for water and the project would cripple the state budget.

“The Carpenter Government opted to build a desalination plant in Kwinana instead, for a fraction of the cost.

“Aside from the cost, there are also many Native Title and environmental considerations that would make the proposal impractical.

“The Premier’s attempt to resurrect a Kimberley-to-Perth water supply is irresponsible and smacks of a leader who will go to any lengths in order to have his way.

“Let us not forget that he lost the 2005 state election over his promise to build a canal from the Kimberley to Perth,” Mr Chapple said.

Greens MLC vows to continue opposition to Gas Hub Development at James Price Point

Greens WA Member of Parliament Robin Chapple MLC has vowed to continue his opposition to the establishment of a gas processing plant at James Price Point.

His comments are in response to the announcement today by State Environment Minister Bill Marmion that he has given approval for the project to go ahead.

“This project has been flawed from the outset,” Mr Chapple said.

“Minister Marmion’s so-called ‘strengthened conditions’ is little more than tinkering at the edges of a massive industrial development that will prove to be disastrous for the ecology, Aboriginal heritage and paleontological values of the area.

“No matter how the Minister dresses this up, the project will cut across the song line known as the Lurujarri Trail that has been celebrated for thousands of years and which is central to the wellbeing of the Goolarabooloo people.

“Thousands of words have been written about its significance, which was accepted at a warden’s court hearing in the 1980s, and no amount of rhetoric about ‘reducing the impact’ and ‘enhancing the protection’ will alter that fact.

“It is unacceptable that Minister Marmion is looking to the State EPA’s report, which was the work of one man, and the recommendations of another one-man phenomenon: the ‘Appeals Committee’ for guidance in this matter.

“We must now turn to the Federal Minister for the Environment to halt this foolishness and disallow the development.


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