Key Takeaways:
- Regis Resources, a mining company, is challenging a heritage protection order issued by the federal government over a goldmine site in New South Wales.
- The company claims the government did not properly assess a Dreaming story at the center of the order and made several errors in the process.
- The protection order affects part of the site, but not the area intended to be mined, and blocks the company from building a tailings dam.
- The company argues that the order makes the project unviable and that the government should have referred the new information back to an expert reporter or required a fresh application.
- The government defends its process, saying it "bent itself over backwards" to ensure everyone had a right to be heard and that a fresh application was not required.
Introduction to the Case
The federal court is currently hearing a challenge by Regis Resources, a mining company, to a heritage protection order issued by the former environment minister Tanya Plibersek over a goldmine site in the central west of New South Wales. The order, which was issued under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act, affects part of the site and blocks the company from building a tailings dam in the headwaters of the Belubula River. Regis Resources claims that the order makes its McPhillamys goldmine development at Blayney unviable and is seeking to have the order declared invalid.
The Government’s Process
At a three-day hearing before the federal court, Regis Resources claimed that the government made several errors in the process it followed and that the order should be declared invalid. The company’s lawyer, Perry Herzfeld SC, argued that a blue-banded bee Dreaming story that influenced the government’s decision to protect the area was not raised until two years after the initial application for a section 10 order was made. Herzfeld claimed that the government should have referred the new information back to an expert reporter appointed by the government to investigate the application or required a fresh application. Instead, the government followed an "ad hoc" process of taking further submissions to consider the new information, which Herzfeld argued affected the procedural fairness afforded to Regis Resources.
The Government’s Defense
In response, the government’s lawyer, Tiffany Wong SC, defended the process, saying that the department had "bent itself over backwards" to ensure everyone had a right to be heard and provide responses to the new information. Wong argued that a fresh application was not required because, in other instances where this had occurred, it involved a change to the geographic location of the area being considered for protection. Wong also noted that the disclosure of the blue-banded bee story was a difficult process for the First Nations people involved and that many factors influenced the decision to pass on a story and when to do so.
The Impact on the Project
Regis Resources also told the court that the government failed to properly consider the impact the order would have on the viability of the McPhillamys project. The company argued that the order would make the project unviable, but the government disputed this, saying that the potential "pecuniary" impacts did not "outweigh the impacts and permanent loss to Aboriginal heritage in the declared area". The government argued that the case should be dismissed with costs.
The Significance of the Blue-Banded Bee Dreaming Story
The blue-banded bee Dreaming story is a critical part of the case, and its significance was debated by both sides. Regis Resources questioned the government’s acceptance of a blue-banded bee public mural in Bathurst as evidence that the story was broadly known to Aboriginal groups in the area, arguing that it had been painted after the initial section 10 application was made. However, Wong noted that the mural was painted two years before the blue-banded bee Dreaming story was submitted to the government as part of the section 10 process, and that it was not unreasonable for the department to form a view that this demonstrated an acceptance by other people of that story.
Conclusion
The case highlights the complexities and challenges of balancing the interests of mining companies with the need to protect Aboriginal heritage. The outcome of the case will have significant implications for the future of the McPhillamys goldmine project and the protection of Aboriginal heritage in Australia. The court will need to carefully consider the arguments presented by both sides and make a decision that takes into account the competing interests and the law. Ultimately, the case serves as a reminder of the importance of proper process and consultation in the protection of Aboriginal heritage and the need for mining companies to respect and acknowledge the cultural significance of the land they operate on.