Goldmine Development Challenged in Court Over Aboriginal Heritage Concerns
A mining company’s plans to develop a goldmine in central west New South Wales are facing legal challenges, with accusations that the government failed to adequately assess a significant Dreaming story before issuing a heritage protection order.
Regis Resources is contesting a decision made last year by former Environment Minister Tanya Plibersek, invoking Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act. The company maintains that while the protection order applies to only a portion of the proposed mine site, it threatens the economic viability of the entire McPhillamys goldmine project near Blayney. Specifically, the order prevents the construction of a crucial tailings dam in the headwaters of the Belubula River.
During a three-day hearing in federal court this week, Regis Resources asserted that several procedural errors were made by the government, and argued the order should be invalidated. A central point of contention revolves around a Dreaming story centered on the blue-banded bee, which reportedly influenced the government’s decision to protect the area.
According to the company’s legal counsel, Perry Herzfeld SC, this Dreaming story wasn’t brought to the government’s attention until two years after the initial application for a Section 10 order was filed. “By this time, an expert reporter appointed by the government to investigate the application had already completed their report and found it did not reach the necessary threshold for the protection,” Herzfeld stated. Regis Resources contends that the story should have been referred back to the reporter for review, or that its significance should have triggered a new application process.
Instead, Herzfeld argued, the government pursued an “ad hoc” approach, soliciting further submissions to consider the new information, a process he claimed compromised the procedural fairness owed to Regis Resources. “The process adopted by the minister skipped that section 10 reporter process entirely in relation to this critical matter,” he explained.
The company further alleges that the government failed to adequately investigate the new information and should have specified a timeframe for the duration of the protection order. Questions were also raised regarding why a key knowledge holder for the Dreaming story hadn’t shared it during earlier consultations with the Section 10 reporter.
Regis Resources also challenged the government’s reliance on a public mural of a blue-banded bee in Bathurst as evidence of the story’s widespread recognition among Aboriginal groups, arguing the mural was painted after the initial Section 10 application. However, Tiffany Wong SC, representing the government, countered that the mural predated the formal submission of the blue-banded bee Dreaming story by two years. “So it wasn’t unreasonable for the department to form a view that this demonstrated an acceptance by other people of that story,” she said.
Wong emphasized the sensitive nature of disclosing such stories, explaining that many factors influence when and how First Nations people choose to share cultural knowledge. She asserted that the department had “bent itself over backwards to make sure everybody had a right to be heard” and to respond to the new information. A fresh application, she argued, wasn’t necessary, as similar situations had only warranted a new application when the geographic area under consideration changed.
Regarding the duration of the order, Wong stated that the company’s demand for a timeframe was “counterintuitive,” and that the court should accept the possibility of an indefinite order. Furthermore, Regis Resources argued the government hadn’t fully considered the potential impact of the order on the McPhillamys project’s viability. The government disputed this, stating that the potential “pecuniary” impacts were weighed against the “impacts and permanent loss to Aboriginal heritage in the declared area.”
The government is seeking to have the case dismissed with costs.
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