ANDERSEN, Dr Martin, Academic, Global Water Institute, University of New South Wales [by audio link]

HIGGINS, Ms Philippa, Research Assistant, Global Water Institute, University of New South Wales [by audio link]

JOHNSON, Dr Fiona, Academic, Global Water Institute, University of New South Wales [by audio link]

KEARNES, Dr Matthew, Academic, Global Water Institute, University of New South Wales [by audio link]

KHAN, Dr Stuart, Professor, Global Water Institute, University of New South Wales [by audio link]

LESLIE, Professor Gregory, Director, Global Water Institute, University of New South Wales [by audio link]

Committee met at 10:08

ACTING CHAIR ( Mr Snowdon ): I declare open this public hearing of the Joint Standing Committee on Northern Australia for the inquiry into the destruction of 46,000-year-old caves at the Juukan Gorge. I would like to thank witnesses for being here today. I acknowledge the traditional owners of the land on which I'm on in Darwin, the Larrakia people, and I acknowledge the traditional owners of the country that all of you are on in your respective places. I pay my respects to their elders past and present, and to all First Nations people across the country.

In accordance with the committee's resolution of Thursday 1 August 2019, this hearing will be broadcast on the parliament's website. The proof and official transcripts of these proceedings will be published on that website. Those present here today are advised that filming and recording are permitted during the hearing. However, I remind members of the media who may be present or listening on the web of the need to fairly and accurately report the proceedings of the committee.

I welcome representatives of the University of New South Wales Global Water Institute. Although the committee does not require you to give evidence under oath, I advise you that this hearing is a legal proceeding of the parliament and, therefore, has the same standing as proceedings of the respective houses of the parliament. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of the parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I invite you to make a brief opening statement before we proceed to discussion. Who is going first?

Dr Johnson : That will be me, thank you, Senator.

ACTING CHAIR: No, don't call me a senator!

Dr Johnson : Sorry?

ACTING CHAIR: I'm not a senator.

CHAIR ( Mr Entsch ): He was the chair. He did an outstanding job. I'm online now, Mr Snowdon—honourable Snowdon. Thank you very much for what you've done there. I'm up in Weipa.

Mr SNOWDON: All right. You take over, son.

CHAIR: You've done a brilliant job, mate. I'm reluctant to do that.

Mr SNOWDON: Fiona is going to kick off, so let her go and stop interfering.

CHAIR: Go, Fiona.

Dr Johnson : I'd like to start by acknowledging the traditional owners of the land on which the UNSW Global Water Institute is located, the Gadigal people of the Eora nation, and acknowledge their elders past and present. Their care for the water on this land is something that we as water engineers and scientists need to learn from.

I'm an associate professor in the School of Civil and Environmental Engineering at the University of New South Wales. I am leading a team of interdisciplinary water researchers from the UNSW Global Water Institute who have been looking at the impact of the McArthur River Mine on the water, the environment and the community of Borroloola over the last few years. We saw for ourselves the impact of the mine on the community when Professor Matthew Kearnes, Professor Stuart Khan and Associate Professor Martin Andersen visited Borroloola in May 2019. This visit was arranged after researchers from the University of Sydney, and particularly Dr Sean Kerins from ANU, spoke with us about the high levels of lead that had been found in the drinking water in Borroloola. During our visit we spoke with many community members, who shared their concerns regarding observed and potential impacts on the McArthur River from the McArthur River mine, upstream from Borroloola, concern that is so powerfully portrayed in Mr Jack Green's artworks, which I know your committee has already seen and admired in his striking submission to your inquiry. The clear message we took from this visit was one of fear for the poor health of the river and the pervasive to the community, who've relied on it as a source of food and water for millennia.

Since then we've been working with the Environment Centre of the Northern Territory to better understand how the impacts of the mine on the river and its water quality have been quantified and reported since 2008. An outcome of this work was a report we released in February this year titled Monitoring the monitor, which was a synthesis of the independent monitor reports that had been prepared on the McArthur River Mine covering the period from 2007 to 2018. Our report was based only on information already in the public domain.

Today we would like to talk about our opinions on the mine, its impact on water and specifically sacred sites, and what needs to change. There are at least 22 sacred sites in the vicinity of the McArthur River Mine—11 are registered with the Aboriginal Areas Protection Authority of the Northern Territory and the other 11 are recorded with the Aboriginal Areas Protection Authority. Of the 11 registered sites, four are directly related to water and another two are trees, which are, therefore, intimately dependent on water as well. In our opinion, the existing environmental regulations and processes that govern the mine are not sufficient to ensure that these sacred sites are protected.

Water is dynamic, variable and always moving down and across the land. To properly understand how the water systems related to these sacred sites work, baseline data collected over multiple wet seasons and dry seasons is required. It is then necessary for data to be collected, by continuous monitoring, to reveal the impacts as development progresses. Neither of these things has happened with the McArthur River Mine.

The environmental impact assessment process only directly considers the impacts on a single sacred site—the Djirrinmini waterhole. Even for that site there's no publicly available baseline data or ongoing monitoring of water levels in the waterhole. In our opinion, this waterhole is exposed to a number of risks, including from groundwater drawdown from the mine dewatering and works associated with the tailings storage facility and the potential contamination of waterways from acid and metalliferous drainage and trace metals. These are risks for all the water related sacred sites. The environmental regulatory process has allowed the mine owners to completely ignore these risks. As engineers and policymakers, we know better and should be doing far better. Sacred sites and Aboriginal culture and knowledge may be lost if the environment that is so integral to them is damaged or destroyed.

With respect to water, the McArthur River Mine has already changed the environment. In our opinion, the potential for future harm is great. This risk is exacerbated by a recent reduction in the environmental security bond put aside for future environmental rehabilitation. The greatest issues related to water are the potential for acid mine drainage and leakage from the tailings storage facility. Both are examples of where we believe that the McArthur River Mine has been too optimistic with its assumptions around the water science and engineering and that stronger protections are needed to minimise the environmental impacts now and for generations to come.

What do we want your committee to take away from our submission? Firstly, infrastructure development needs adequate baseline data to be collected prior to the start of the project so that impacts can be detected and, if necessary, quantified. Secondly, environmental monitoring data should be publicly available and in near real time. There are too many delays in the release of the independent monitor reports. Thirdly, there needs to be better regulatory processes to ensure that when potential issues are identified they are rectified. The independent monitor process could be highly effective, but it is let down by lack of recourse to present delays.

Finally, far more needs to be done to communicate with local communities and in particular with traditional owners about the environmental risks and impacts of the McArthur River Mine. This should include improved timing for the release of reports—not near Christmas and holiday periods. So-called community reports are either brochures that gloss over the issues or are jargon filled shortened versions of full reports. Improved methods need to be mandated for true dialogue that takes the time to allow the community to understand and question. Longer periods are required for communities to provide feedback to major environmental assessment processes, particularly because the documents are large and complex—generally thousands of pages. These projects will have impacts for centuries to millennia. The proponents and governments can afford to wait more than six weeks for comments.

Thank you for the opportunity to address the committee. We strongly support your work and hope that we see real changes in state and federal legislation in the future to protect water and land for Indigenous communities and all Australians.

CHAIR: Thank you very much indeed for that overview. I'm going to reach out now to members and senators as we start the discussion.

Senator DODSON: Thank you, Dr Johnson, for your information. Have you had an opportunity to assess the recent independent monitor's review of the mine? It seems to say that the mine has complied with the recommendations of the Northern Territory Environment Protection Authority. Have you reviewed the recent report and, if you have, do you agree with the assessment?

Dr Johnson : We're yet to read it in great detail, but our first impression was that it has taken a very tick-box approach, essentially, by listing all of the regulations, saying whether they've been complied with or not and then adding that up and saying 'Well, there's 95 per cent compliance.' But it doesn't rank those risks in any sense. It's a completely different style of report to the previous independent monitor reports. Those really provided interpretation and analysis of the data, whereas this report is more just, 'This requirement has been met or partially met, or doesn't apply yet.' It's going to take us a lot more work to read it in detail, but our first impression is that with the favourable reporting in it we don't think that style of report can really provide the full picture.

Senator DODSON: How would you suggest the report be framed or crafted?

Dr Johnson : I think the previous independent monitor reports were a useful tool because they took the data from the mine and then looked at what it meant. The problem with the previous independent monitor reports was that there was a long lag in their release and then there was an even longer lag in response from the mine or the regulator in terms of taking the recommendations. I think that way of presenting the independent monitor report could work really well; it just needs quicker follow-up. This current independent monitor report just seems to be a checklist.

Senator DODSON: Do you have any view as to why there has been the change in format of the reporting?

Dr Johnson : We don't have that information. It's a new independent monitor; I imagine that their terms of reference have been changed, but we don't have that information.

Senator DODSON: Can you give us an overview of the water related impacts on the sacred sites around the mine tenement?

Dr Johnson : Martin, do you want to talk, or do you want me to?

Dr Andersen : I can certainly help here. I think one of the problems here is that there's not a lot of monitoring going on in terms of the sacred sites and there's not a lot of data put out publicly that can be assessed and interpreted. So your question largely goes unanswered. If we take the Djirrimini Waterhole as an example, one of the impacts that this waterhole may see is a decrease in water level due to decreasing groundwater levels. That can have impacts on its ecology, and I think we all agree that a sacred site such as the Djirrimini Waterhole would be diminished greatly if it doesn't have its ecological value. We know from research elsewhere that lowering water levels in surface water environments can damage their ecology and their environment. We don't know, to any extent, what that impact will be. There's no public assessment, at least, of what the ecological impacts might be of lowering the groundwater level in the vicinity of the waterhole and therefore also potentially impacting the waterhole. That's a physical impact from the mine's way of managing groundwater around the site. We might also see chemical impacts from acid mine drainage or we might see impacts from dust from the mine with heavy metals in it.

But this is all speculative because, as far as we are aware, there's no monitoring. If there is monitoring, that data is not made available to us. For us, it's impossible to make an assessment of those impacts currently.

Senator DODSON: It's difficult for a committee like ours to understand the differing views here. We've heard often that the Northern Territory has some of the strongest protections for cultural heritage in the country, including of sacred sites, which have a veto in the land rights act. So why hasn't this worked in this case? Why hasn't this legislation been effective in protecting these sites?

Dr Johnson : It's a hard question for us to answer, but I think the sequential development of the McArthur River Mine and because of the optimistic assumptions that were made in the original change to open-cut from underground mining that were proved to be wrong and then required the supplementary EIS have probably led to a worse outcome than if everything had been known at the start or had been clear at the start. Even the most recent approval of the EIS without certificates from the Aboriginal Areas Protection Authority would suggest that the Northern Territory process is not working as strongly as it could be.

Senator DODSON: In your view, what needs to occur to protect the sacred sites at the McArthur River Mine?

Dr Johnson : It could be that damage is already done and we don't know about it. But to understand that damage we need better monitoring, and that needs to be publicly available. It should be publicly available in real time, not with multiple years of delay. There needs to be far better consultation and true active community involvement in the process. I'm not sure if Matt wants to speak a little bit more on that.

Dr Kearnes : Yes. One of the findings of our research was a real need for better community participation and dialogue around these processes. We found that there was a clear disparity between what community knew about the site and what was being published elsewhere. There is real room for improving that.

Senator DODSON: So we really don't have any idea whether damage is being done, in fact, or not. We have assumptions that it could be or may be. How does a committee like ours get to understand the facts here? It's a bit complex to understand.

Dr Khan : One of the points that we make in our submission is that that is the problem. It's a lack of ability to understand the facts due to a lack of requirement for that information. So we've highlighted the fact that there was inadequate baseline monitoring going on before the development and that this is something that needs to be improved for future developments. Then there's the lack of ongoing monitoring, the lack of availability of data that comes from ongoing monitoring and then a real lack of adequate, timely responses to things that actually are picked up. In our submission, we've highlighted issues with understanding the acid production ability of the waste rock that's produced from the mines and the fact that the independent monitor, which is required to provide that monitoring, picked up that there was likely a mischaracterisation of the acid-producing potential of the waste rock in 2008. But it took 12 years for that to be responded to in a way that implemented changes in practice to try and prevent further environmental impacts from the way the waste rock was managed. It's not simply a case of being able to say, 'Here are the impacts; we can point to specific environmental impacts.' It's the fact that the work is not being done to understand those impacts, report those impacts, and respond to the indications that there may be impacts.

Senator DODSON: This is my last question. At the start, Dr Johnson, you said that there's been a report of high lead in the drinking water in the community. What was the resolution to that?

Dr Johnson : We were invited to attend a workshop that the University of Sydney held in July 2019 where the issues of high lead in drinking water in Borroloola were raised. There has been a 'do not drink' order on for the communities. Our understanding is that that was thought to be due to the pipe fittings and things within the town and that NT Power and Water did commission a new, very high-tech water treatment plant that serves part of Borroloola, not all of the communities. So that issue, to our understanding, has been partially resolved. When Martin, Stuart and Matt went up originally—and Martin will give the exact terms—they found that lead's going to come through easier because of the chemical properties of the water.

Dr Andersen : Some of the water collected in some of the bores that supply the town is naturally a bit acidic. It's got carbonic acid in it, so it's got a low pH value. That makes heavy metals more mobile in the water. It may be a natural process not necessarily related to mining activities. However, when we visited the community, we found a lot of anxiety and worry about potential impacts not only to the drinking water but also to the river. That is a very tangible impact and damage on the local community from the mine, and that is something that is not being addressed. Yes, they've now got a water treatment plant that can deliver good water quality, at least for the drinking water. But the issue of the worries around the river and lead in the river is a social impact that has not been rectified.

Senator DODSON: Is it a scientific fact that the lead is at such high levels that it's impacting drinking water and the species that live in the water?

Dr Andersen : Stuart, do you want to jump in on that one?

Dr Khan : There have been a number of reports about lead in the actual drinking water supply. I've had a look at that data and communicated with NT Power and Water about some of that data as well. When you look at the concentrations that were reported in the drinking water samples, I would not characterise it as a significant health concern. Some approached the Australian drinking water guideline, which is 10 micrograms per litre. But the way that we would interpret the guideline is as one significant figure value, so it's really 0.01 milligrams per litre. When you look at that one significant figure, the concentrations generally did not exceed that guideline and certainly didn't for a long-term, continuing basis, which is the way that we would interpret drinking water guidelines for lead.

I think it was resolved that there were issues around some of the sampling for lead. Very often when you find lead in tap water, as I think Martin said, the source of that lead often isn't from the raw water itself, though it can be, but from the distribution system—from the pipes that deliver water to households. Sometimes those pipes have lead soldering that's used in them and lead leaches from those. I understand that NT Power and Water, after having a couple of spikes at a particular sampling point, replaced that sampling point—the tap or the pipe at that particular location. My understanding is that the problem was resolved as a consequence.

I think the drinking water is perhaps not the biggest issue for lead in Borroloola, though I know that when we were there we observed a lot of concern about fish that were caught from the river. Fish accumulate certain metals, particularly and notoriously lead. When you have fish that are living in a waterway that has elevated concentrations of lead, even if those elevated concentrations are intermittent, you can end up with unsafe levels of lead in fish. We did observe that there are community recommendations about limiting locally caught fish in the diet in Borroloola, which I found to be distressing because that has obviously been a very important part of the cultural heritage, the way people have lived in Borroloola, for a very long time, relying on locally caught fish from the McArthur River. The fact that they're unable to confidently do so now is a concern that should be addressed. So perhaps not the drinking water itself but potentially the impact to the river and the food that's caught from the river is having a significant impact on the way people live in Borroloola.

Senator DODSON: Thanks.

CHAIR: Just before I go to Senator Thorpe, I have a quick question. You've raised a lot of concerns here on tardiness—12 years to respond to reports, et cetera—and a number of other things. You've told us a lot of the challenges or issues that you've seen with a group of academics like your good selves. I ask you to now step out of that position and step into the position that we have in so much as we're looking for solutions. I'm very keen to know if you have any views—you raised issues in relation to independent monitoring, et cetera. How should we be addressing these? Have you got any ideas or any recommendations in relation to state and federal protection or what we need to incorporate in our recommendations to be able to address some of the concerns that you guys have been raising?

Dr Johnson : For other projects going forward to prevent things—

CHAIR: Yes, that's what I'm looking at. We can address this. We've had a fair bit of discussion with Borroloola from all sides. Having said that, though, how do we move forward on this? What sort of recommendations can we make so that we don't go down this track again?

Dr Johnson : We think the main thing is collecting baseline data before projects start. That means at least a few years of wet seasons and dry seasons when we're talking about water impacts particularly, which is our area of expertise, so that we understand the variability that naturally occurs. Obviously, ideally, 30 years of data would be better, but that's not realistic, so we'd get a couple of years of data to get a bit of that variability. Also improving the length of time for the community consultation and improving the process of community consultation, particularly when we're talking about remote communities who may not have the resources internally to understand documents that are thousands of pages. We need much more active community engagement methods that help communities understand what these documents are saying about impacts, and not a six-week turnaround for comment on an environmental impact statement. It's just not realistic for any community to be able to digest multiple years of work from the proponents in in six weeks. I think they're the two big things that you could mandate going forward for projects that would improve outcomes or at least improve our ability to identify problems earlier.

CHAIR: Thank you very much indeed for that. That's very useful.

Dr Andersen : I'm just hoping to add one point to that. In our work, in trying to understand what's going on in Borroloola, I think the main impediment for us has been lack of data—some form of open platform for data for community, academics or whoever wants to question and query the data that's being collected. I think that's really important as well, so maybe getting rid of some of the proprietary information clauses or commercial-in-confidence clauses for that type of environmental water quality and water level data.

CHAIR: Those are three very useful points that you've made. I appreciate that, because we often hear about all of the problems there, but our job is to try and find solutions. I think what you've offered there are three very practical suggestions. I'm now going to go to Senator Thorpe.

Senator THORPE: You talked about consultation with traditional owners particularly. My question is around free, prior and informed consent and, from your observations and working with the community, whether free, prior and informed consent is obtained by traditional owners in a way that people understand and where they get the time to seek independent advice and then come up with a decision collectively. Can you give us an idea of what you've come up with in that space?

Dr Johnson : Matt, do you want to comment on that?

Dr Kearnes : Actually I might see, Philippa, whether you want to jump in on this. You've probably looked at that in a bit more detail.

Senator THORPE: Basically what does consultation look like right now?

Dr Johnson : The one thing that I would say is that we've only met with the community on two occasions. We haven't done research with the community, so we can only comment on what our observations have been. We have also only been really looking at the independent monitor report process and not the wider environmental impact assessment process. But we can extrapolate from what we see of the independent monitor process that there's a copy of the independent monitor reports left in the community and that there may be a quick presentation of what it was each year. That's about the extent of what we've seen in terms of community consultation, and we think that's inadequate in terms of having the resources of someone coming in and helping people understand what this is actually saying, because the community versions of the independent monitor reports have still been fairly jargon full. They're quite technical documents, even though they're the community versions. I think that does not meet the requirements for free, prior and informed consent. But I guess we were not involved in Borroloola when the mine was originally being put in or when the mine was being changed to open cut, which is when the environmental impact assessment process had the most opportunity for things to change, whereas the independent monitor reports are snapshots annually; it's already in progress.

Dr Andersen : I think the other problem is perhaps that proponents may cherrypick who they wish to speak to, whereas, in very complex environmental settings like this, the impacts might go much further than who you might perceive to be the traditional owners or custodians of a particular part of the landscape. In the case of Borroloola, you get people who are impacted but have no say, so I think that's also very important to keep in mind—that some of these environmental impacts know no boundaries or borders, so you've got to have a much wider community approach to ensure that consent.

Senator THORPE: That sounds all too familiar. Thank you for that. Do you think that traditional owners need logistical or financial support to be able to effectively participate in heritage protection? How could this be resourced and implemented?

Dr Johnson : Yes. I would say that, in most communities across Australia, the level of scientific knowledge is not strong. For remote communities and Indigenous communities, that's even more the case. When documents are presented in written form, people need help and resources to interpret them, understand them and place them in their own understanding of the landscape. We've been talking about the fact that more spatial methods of presenting information could be appropriate, as well as digital methods that could be accessed by apps or things like that. They're research questions that we would love to investigate: What would be the best way to present the information that communities need? What support do communities need? These are research questions that we're actually really interested in going forward, because I think communities do need support. Sometimes, I'm guessing, that would be financial support, but it could just be resources for advocates. I think it's really important to continue to resource organisations like the Environment Centre NT or the Environmental Defenders Office, the NGOs who are already on the ground doing incredible work with communities, to build local partnerships. I don't know if there's anything anyone else wants to jump in with there.

Senator THORPE: That's a great idea. Thank you for that. It is about simplifying the message. That's certainly what I picked up from my visit to Borroloola. My next question is: what role do you think climate change plays when it comes to the long-term impacts on cultural heritage, and what role do mining companies play in this?

Dr Johnson : That's an excellent question. Climate change will most likely exacerbate the impacts that we already see. If we think that there'll be impacts from heavy rainfall currently, then we're almost certain that rainfalls will be heavier in the future. Those impacts will be exacerbated. If we have changes in the monsoon timing, that will put extra pressure on waterholes like Djirrimini, which mining will further exacerbate. What role do mining companies have in that? There's obviously the role mining has in terms of causing carbon emissions from coal or things like that, and minimising that is one way that we can make a huge difference in stopping those impacts. In the case of the McArthur River Mine, I'm not so sure that the mine itself has a direct role in the climate impacts. But it needs to be designed with the climate change impacts in mind to ensure that, particularly around water in our area, the risks of changes in dry periods, wet periods and the amount of rain are understood, on top of the existing risks that are in the system.

Senator THORPE: Thank you. I have a number of other questions, Chair. I'll put those on notice. Finally, Fiona, in terms of the high lead levels in the fish, has there been any work done on the impact on the community in terms of diet or babies' health? Has there been any deeper research done on the effects of this lead?

Dr Johnson : Not that we're aware of. Our understanding is that linking environmental impacts to health impacts in a community is a very difficult science. It's not our area, but our understanding is that it would be quite difficult to even attempt to understand those links. Stuart?

Dr Khan : The way that would normally be assessed would not be by looking, epidemiologically, at the community themselves but by understanding, from much broader studies, the impacts elevated lead exposure has on communities and individuals. And we do know that there are lots of public health impacts. There are impacts on brain development. There are impacts on all sorts of social outcomes, in terms of people's behavioural responses. Increases in antisocial behaviour, for example, and reduced learning capabilities in people have been measured across larger populations that have been exposed to higher concentrations of lead. That's why we have stringent lead controls throughout society—in drinking water, in air and in household exposure. The real question, I think, is: how well do we understand the degree of elevated lead exposure in the community in Borroloola and in the surrounding areas? My understanding is that the Northern Territory government has investigated that question and does have an understanding of elevated concentrations of lead, particularly in fish and other seafood caught in that local environment. So it is a real issue. Whether or not you can directly attribute specific public health outcomes in the community to that issue is, I think, a much more difficult question.

Senator THORPE: Finally, do you think that it's worth pursuing, or do we wait and see?

Dr Khan : As I say, the key thing is that we have a good understanding. We have standards and guidelines in Australia for what an acceptable level or an unsafe level of exposure to lead is. Those guidelines apply to everybody, including the people of Borroloola. If, through proper scientific analysis, it is identified that people in that community are exposed to elevated levels that go beyond what we have identified as safe levels of exposure, then, yes, we have a responsibility to respond to that and to put in place measures that will reduce current exposure to lead and measures that will reduce the likelihood of future elevated exposure to high concentrations of lead. And that's largely what dietary recommendations are in place to do. Those dietary recommendations are there to control total community exposure to lead.

Senator THORPE: How often is—

Teleconference interrupted—

CHAIR: We're having a problem here somewhere. There's a breakdown. Lidia, are you still on the line?

Senator THORPE: I'm still here. Can you hear me?

CHAIR: Yes, I can hear you now. How about our witnesses—can you hear us?

Dr Khan : Yes.

Dr Andersen : Yes. I can add to what Stuart said. I think the other concern here is whether those investigations, in terms of lead in food sources, have been comprehensive enough. Some species have been investigated, but when we speak to community, they're worried about things like turtles and dugongs, and as far as I'm aware, there has been no investigation of their levels of lead. And the other thing is that, in an environment that is so variable, with dry and wet seasons, I think that maybe some of these investigations also need to be more comprehensive in a time series. It's maybe not enough to go out and do these measurements once a year; you might want to do them three or four or more times a year to make sure that you cover the issue comprehensively.

CHAIR: Are you right there, Lidia?

Senator THORPE: Yes. I have no further questions. I'll put the rest on notice.

CHAIR: Thank you very much.

Mr SNOWDON: Thank you for all that. I was very interested in the evidence that you gave as a result of Senator Dodson's inquiries. Can you inform us of the history of monitoring of this site since the mid-1990s?

We know the circumstances in which this mine got fast tracked, we know that the Native Title Act didn't apply, and we know that the land rights act didn't apply. What environmental protections were built in initially, and what's taken place over time?

Ms Higgins : We don't really have any publicly available information on that initial environmental impact statement process when the mine was entirely underground. It's just too long ago. Those documents are not available. However—

Mr SNOWDON: Sorry—why aren't they available?

Ms Higgins : They're not publicly available on the Northern Territory government website, so we're not able to source those documents.

Mr SNOWDON: Has anyone ever queried the Northern Territory government about sourcing them?

Ms Higgins : I don't know if someone else has done that. We didn't do that.

Mr SNOWDON: Okay. Thank you.

Ms Higgins : Our understanding of what goes on in the mine really starts with the change to the open cut in 2006. This was really when the process was very concerning to the community. We know that there were community concerns around the mine before the transfer to the open cut, but it was really within the diversion of the McArthur River that things became environmentally concerning. That was around the 2006 process. We would get the independent monitor as an approval condition to transfer to the open cut; that was part of the approval conditions. The idea was that the independent monitor would give the community confidence that environmental impacts at McArthur River were being adequately addressed. So, from 2008, we start to see the independent monitoring reports, and then we have a good understanding of what the environmental monitoring at the mine was in terms of surface, groundwater, dust—all the emissions to the environment are then discussed in those reports going forward. So we don't see all the monitoring data; we see an interpretation by the independent monitor of the data that was provided to them by the mine.

Mr SNOWDON: In your submission you say:

… there are currently over 70 outstanding issues identified by the Independent Monitor which are either not addressed or only partially addressed by MRM.

Would you like to give us a summation of what sort of issues we're talking about here, please. And are they historical, or are they current?

Ms Higgins : Some are current and some are ongoing. The independent monitor—this is in the 2018 report, which was saying that those issues were ongoing—also assessed how significant those issues were. Some of them have a very significant risk, and some of them have a lower risk. One of the things that we were really concerned about, again, was seepage from the tailings storage facility. That is an ongoing issue. None of the previous mitigation measures that had been put into place had actually been successful in addressing. This is an ongoing issue that the independent monitor raises. Then there are other issues particularly of concern to us, for example, around community consultation in identifying how you should assess these water related sites. The independent monitor recommends that the community be involved in assessing impacts to sites. That is not actioned by the mine, so that's an ongoing issue of concern. There are so many recommendations. I think there are more than 70.

Mr SNOWDON: Yes, you say there are over 70. There's no compulsion on the mine operator to respond to those issues as they've been identified in a timely fashion—they can just ignore them, can they?

Ms Higgins : That's what we're seeing, yes.

Mr SNOWDON: Who oversights the role of the independent monitor?

Ms Higgins : I think they're called DITT at the moment—the department of mines.

Mr SNOWDON: So the department of mines get these reports. What's their role in ensuring that these reports are actually pursued and the issues identified and followed up?

Ms Higgins : At the moment the mine regulator has the role of approving the mining management plan, and the mining management plan should address the recommendations of the independent monitor.

Mr SNOWDON: Is that a constantly-changing document or documents?

Ms Higgins : They're not updated constantly, but there are new mining management plans when there's a change in the mine approval.

Mr SNOWDON: From what you're saying, the mining management plans can ignore the monitor because the NT regulator doesn't enforce addressing the issues raised by the independent monitor.

Ms Higgins : Yes. The independent monitor's recommendations are only recommendations.

Mr SNOWDON: And the recommendations are to whom?

Ms Higgins : They make recommendations both to McArthur River Mine and to the regulator.

Mr SNOWDON: Okay. So we're talking about a fairly toothless little organisation—the independent monitor. I'm getting a nod!

Ms Higgins : Yes, you could characterise it that way.

Mr SNOWDON: I could. Do you think there's a role for Commonwealth environmental protection legislation in places like Borroloola and, if so, what is that role?

Ms Higgins : Fiona, which you like to take this up?

Dr Johnson : I think that once we get into legislation more broadly we're probably a little outside our area of expertise. Stuart?

Dr Khan : I can make a couple of comments on that. There are some Commonwealth activities that are relevant. I know that there's the review of the Native Title Act and the discussions around the 'voice to parliament', for example. Potentially, all of these things enable the Commonwealth to adjust the way that it oversees some of these practices.

The one that we have particular awareness of as water academics is the work that's going on at the moment in National Water Reform. As you probably know, the Productivity Commission was asked to do their three-year review on the implementation of the National Water Initiative recently. They released a draft report in February. My understanding is that the final version of that report has been submitted to parliament now. It hasn't been made public because it needs to be tabled in both houses of parliament to do that. But one of the key recommendations that the Productivity Commission made in the National water reform draft report, at least, was that we need to improve Indigenous engagements in decision-making around decisions that impact on water—water resource development and protection of water environments.

So this is an area which, hopefully, the government will adopt in terms of updating and renewing the National Water Initiative and it will be an area of focus. I think there's a good opportunity for this committee and this inquiry to make a recommendation directly into that process that would encourage it to be seen as a serious issue; that participation in decision-making by Indigenous communities is lacking and that we need a national strategy—we need a way to better understand how to facilitate better contributions from Indigenous and other remote communities in these types of decisions. That should be a big discussion going forward for water resource management in Australia over the next few years, in my opinion.

Mr SNOWDON: Just to be clear: you have no comments to make as to the heritage protection elements in the Commonwealth EPBC Act or the Aboriginal and Torres Strait Islander Heritage Protection Act?

Dr Khan : Only to note—

Mr SNOWDON: Our primary concern here is the protection of heritage sites.

Prof. Leslie : Our water institute covers the Faculty of Law as well and, regrettably, one of our environmental lawyers hasn't been able to participate. But we'd be more than happy to take that question to him and get him to respond to the committee.

Mr SNOWDON: That would be great, because one of the elements of this is for us to make recommendations on the adequacy or otherwise of state and territory heritage legislation and Commonwealth legislation, and whether or not there should be a sort of lender of last resort in Commonwealth law to protect sites. That the guts of what we're on about. We happen to be talking to you because of the impact of water on sites, but it's site protection that we're on about.

Dr Andersen : I'd just like to make a point on that. I think it's very important to acknowledge the tight links between sacred sites and environment. Most sacred sites will diminish in value if any ecology is degraded. On that note, I have a lecture that started five minutes ago so I have to apologise and do my day job! I'm very pleased to have been able to contribute to this inquiry and I hope that you'll have some impact with your work. Thank you.

CHAIR: Warren, have you finished?

Mr SNOWDON: That's an open question, but yes I have!

CHAIR: Thank you very much indeed to our witnesses from the University of New South Wales' Global Water Institute. You took a question on notice from Warren Snowdon which you were going to offer some insight on. We'd appreciate it if you could do that, and Senator Thorpe will also place some questions on notice for you. We'll get those to you through the secretariat. In the meantime, we'd appreciate any additional information that you have; you can forward that back to the secretariat by 20 July 2021. You'll be sent a copy of the transcript of your evidence and this will give you the opportunity to request corrections to transcription errors. Again, thank you very much indeed for your participation.

Ms WELLS: Chair, before we go—

CHAIR: Sorry, Anika, I do apologise!

Ms WELLS: You weren't to know—I jumped on 10 minutes late. I just want to record that I was here for the session and that I'll be here again when we resume.

CHAIR: You don't have any questions?

Ms WELLS: No, all good.

CHAIR: We'll break now.

Ms Higgins : Thank you for the opportunity to speak.

Proceedings suspended from 11 : 07 to 13 : 02