The mining company behind the proposed McPhillamys gold project is seeking a judicial review of an Aboriginal heritage decision that it says has made the project unviable.
Perth-based Regis Resources announced on Thursday it had commenced formal legal proceedings in the federal court to seek a judicial review of an Aboriginal heritage declaration made under section 10 of the federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which blocked construction of a tailings dam in the headwaters of the Belubula River.
The proposed open-cut goldmine near Blayney in central western New South Wales would cost $996m to build and have a potential gross revenue of $5.2bn over the life of the mine, according to the company’s estimates from July.
The environment minister, Tanya Plibersek, made the declaration in August in response to an application made by Wiradyuri elder Aunty Nyree Reynolds, a member of the Wiradyuri Traditional Owners Central West Aboriginal Corporation.
In a statement to the ASX, Regis said it was seeking a declaration that the section 10 order was “legally invalid” and that it be redetermined by a different minister. It’s also seeking costs.
Plibersek’s office said: “As legal proceedings have commenced, it would be inappropriate for the Minister to comment”.
In a statement of reasons released last month, Plibersek said the “proprietary and pecuniary impacts to the proponent and others do not outweigh the irreversible damage and permanent loss to the Aboriginal cultural heritage in the declared area”.
In particular, she said the proposed tailings dam would cause irreversible damage to an area that is of significance due to the blue-banded bee dreaming, and that the damage to those cultural heritage values was not able to be mitigated and would remain despite the proposed restoration of the mine site.
“Development of the [tailings storage facility] would involve plugging the springs with cement and the TSF may cause water pollution, which would not only threaten water quality in the Lachlan-Murray basin, but will sever Wiradjuri connection to the specific area,” she said.
In a statement to the ASX on Thursday, Perth-based Regis Resources said it had commenced formal legal proceedings in the federal court in respect of the decision, which was made under section 10 of the federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
The Orange Local Aboriginal Land Council, supported by NSW Aboriginal Land Councils, said it was neutral on the mine but opposed the s.10 application, arguing the responsibility for heritage protection should fall with local Aboriginal land councils and branding WTOCWAC a “rebel” group.
The federal laws allow for any Aboriginal person or group to make an application. The environment minister, who has carriage of the act, is able to made a declaration if they are satisfied the area is a “significant Aboriginal area” and is “under threat of injury or desecration”.
WTOCWAC has refrained from commenting publicly on the decision beyond complaining to the ABC that their members had been “threatened and harassed”. The group has engaged its own lawyers.
On Wednesday, the NSW resources minister, Courtney Houssos, revealed she wrote to Plibersek five days after the s.10 decision was announced, rebuking the heritage protection order and saying it was important state and federal governments “align our efforts on supporting investment in Australia’s critical minerals while protecting Indigenous heritage”.
• This article was amended on 8 November 2024. An earlier version said any traditional owner could make an application for heritage protection under the ATSIHP Act; in fact, the act states applications can be made by an Aboriginal person or group.
