Clough collapse sparks legal warning over Perdaman fertilizer plant from Murujuga custodians
Murujuga traditional custodians have this morning released an open letter (below) to potential construction contractors and investors in the proposed Perdaman Fertiliser Plant notifying them of ongoing objections to the project and potential legal liability and litigation arising as a result.
It follows the announcement last week that the primary contractor for the Perdaman plant, Clough, has been placed into voluntary administration, and an acknowledgment from Perdaman that this will delay their planned construction of a fertiliser plant on the Burrup that threatens Murujuga sacred sites and rock art.
The letter, signed by Mardudhunera women Raelene Cooper and Josie Alec on behalf of Murujuga traditional custodians, states that undertaking the construction of the Perdaman fertiliser plant at its planned location presents significant cultural, financial and reputational risks of which potential contracting parties and investors should be aware.
The letter informs potential contractors or investors that the Perdaman project does not have the free, prior, and informed consent of Traditional Owners and Custodians and is thus in breach of human rights under the United Nations Declaration on the Rights and Interests of Indigenous Peoples.
The open letter also notes that the Perdaman project is the subject of an ongoing investigation under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which allows the Federal Minister for Environment to make a declaration for permanent protection of Murujuga that may include mandatory regulation, restriction or prohibition of works or developments from taking place.
Traditional custodians state that the collapse of Clough presents an opportunity for the proponents to relocate the fertiliser plant off the Burrup to the nearby Maitland Industrial Estate, as Murujuga elders have repeatedly requested, and to ensure the project uses renewable energy rather than highly polluting liquified natural gas.
The letter closes by noting that Murujuga traditional custodians have engaged the Environmental Defenders Office Ltd to assist with cultural heritage applications and advise on further legal avenues that may be available in exercising their rights to protect their cultural heritage at Murujuga from the Perdaman project and other related developments.
Open letter to potential construction contractors, investors and other partners in the proposed Perdaman Urea Plant
We are an independent group of Traditional Owners and Custodians of Murujuga – an area which includes the proposed location for the Perdaman Urea Plant (Project) on the Burrup Peninsula near Karratha. The purpose of this letter is to notify you of our ongoing objection to the Project.
Undertaking the construction of the Project at its planned location presents significant cultural, financial and reputational risks of which potential contracting parties and investors should be aware.
The Project does not have the free, prior, and informed consent of Traditional Owners and Custodians. We draw your attention to a large and increasing group of Traditional Owners and Custodians, including senior knowledge holders and elders, who have called for a moratorium on further industrial development on Murujuga. We believe the Project is proceeding in breach of our human rights under the United Nations Declaration on the Rights and Interests of Indigenous Peoples, and have written to the United Nations High Commissioner for Human Rights in relation to the Project.
Although some approvals for the Project have been granted under various State and Commonwealth laws, these have been demonstrated to be completely inadequate to protect significant Aboriginal sites in Western Australia, including most recently by the Senate Inquiry into the Destruction of Juukan Gorge by Rio Tinto in May 2020. For this reason, the approvals that have been issued for this Project should not be relied upon by contractors, investors and other parties to the Project.
Contractors and investors should be aware that the Project is the subject of an ongoing investigation by the Australian Commonwealth Department of Climate Change, Energy, the Environment and Water pursuant to our application under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Application).
Section 10 allows the Australian Commonwealth Minister for Environment to make a declaration preserving or protecting a specified area from injury or desecration. This declaration may include mandatory regulation, restriction or prohibition of works or developments from taking place in the specified area. The declaration, where made, may remain in force for as long as the Minister determines is necessary to protect or preserve the specified area.
Pursuant to the Application, we have asked that the Minister make a declaration that includes a moratorium on further development in the Project area and surrounds. We have also asked that the terms of the declaration provide for an alternative development plan so that proposed new developments on the Burrup peninsula, including the Project, are instead located the adjacent Maitland Industrial Estate, where development may occur without causing further disturbance and desecration to the well documented cultural heritage values of Murujuga. The investigation is ongoing and the Minister is yet to make a decision. The potential outcome of the Application may preclude the Project from proceeding in its current form.
Consistent with our cultural obligations to protect the heritage values on Murujuga, we will continue to object to, and take action against, the Project being constructed on Murujuga, including by exercising our legal rights.
An opportunity for change
The collapse of Clough Engineering presents an opportunity for the proponents, investors and other parties involved with the Project to reconsider its form and location.
The construction of the Project on Murujuga will have a significant and permanent impact on our cultural heritage, and the World Heritage values of the area. It is our position that the Project must be relocated to the Maitland Industrial Estate.
In addition, we believe this is an opportunity to reconsider the form of the Project, so that it can be constructed to use renewable energy rather than highly polluting and damaging fossil gas. The current proposal not only causes direct physical desecration to our cultural heritage, but also facilitates other damaging industrial developments on Murujuga, by increasing demand for fossil gas - including from the Woodside Scarborough and Pluto Train 2 LNG developments which are contracted to supply gas to Perdaman
We have engaged the Environmental Defenders Office Ltd to assist with our Application and advise us on further legal avenues that may be available to us in exercising our rights to protect our cultural heritage at Murujuga from the Project and other related developments. We are committed to ensuring the protection and preservation of our cultural heritage.
If you wish to discuss any of the matters raised in this letter, please contact us on email@example.com and we would be happy to meet with you subsequently by phone or in person.
Mardudhunera Custodian of Murujuga, former Chair of Murujuga Aboriginal Corporation
Kuruma Marthudhunera Custodian of Murujuga