Miners have warned of a new and unprecedented sovereign risk to resources investment in Australia after the Albanese government’s decision to effectively kill a $1bn goldmining project in NSW on contested Indigenous heritage grounds that have been challenged by a local Aboriginal land council.
The decision by Environment Minister Tanya Plibersek on Friday to override her own federal department and NSW planning approval for the Regis McPhillamy’s gold mine near Blayney has rocked the resources sector, which claims section 10s of the Aboriginal and Torres Strait Islander Heritage Protection Act is now being hijacked by green groups to block projects that have otherwise met all necessary state and federal development approvals.
The industry claims this section of the act, enacted by Labor in 1984 during the lands rights movement, is being weaponised by green activists.
Senior government sources have also revealed they have witnessed an increasing use of section 10s to try to stop projects after all other avenues have been exhausted. But this project marks the first time Ms Plibersek has used the power.
The minister’s decision ignores the concerns of the Orange Local Aboriginal Land Council, which has legislative authority to speak for country. It claimed that there were not any concerns that could not be managed, and questioned the authenticity of those who were opposing the site on Indigenous heritage grounds.
“It is a matter of concern to OLALC that a range of claims have been made on this issue, by people and organisations lacking the experience, expertise and authority to hold themselves out as authorities on Aboriginal Cultural Heritage,” the land council submission said. “We question the motives of people and organisations who participate in promoting unsubstantiated claims and seek to hijack Aboriginal Cultural Heritage in order to push other agendas.”
Ms Plibersek said she was relying on the evidence from the Wiradjuri/Wiradyuri people, who her office said also had legislative authority to speak to country in that local region.
The Regis McPhillamy project, which has been effectively denied based on a submission from a group of 17 people, is one of several major resource projects under challenge through this section of the Indigenous Heritage Act.
The Association of Mining and Exploration Companies has warned that the decision marks a dangerous precedent for projects in Australia, despite Ms Plibersek’s protests that her ruling was not a decision to stop the mine and was in line with concerns raised by other local Indigenous representatives.
Last week another project, the Bellevue gold mine in Western Australia, was subject to a section 10 objection lodged by a single complainant, a move that AMEC claimed had direct implications for already-approved mining projects across the country.
AMEC chief executive Warren Pearce said: “This is an incredibly disappointing decision that sets a truly terrible precedent for investment risk in Australia. This is the definition of sovereign risk.
“If any project, no matter how thoroughly consulted, negotiated, supported and assessed, can be knocked over by the objections of only a few people right at the end of the process, then how can any company or investor have confidence to invest in Australia.
“Section 10s (objections) have an exceptionally low bar to make an objection, and often cause significant delay.”
Mr Pearce said the Regis McPhillamy decision would likely encourage more activists seeking to weaponise the act against project developers. “It’s scarcely believable, that the federal minister could uphold this objection, when a comprehensive state inquiry found that there were no unacceptable impacts on cultural heritage,” he said.
The Regis gold mine had passed all the necessary development approvals under federal and NSW law including the Environment Protection and Biodiversity Act. The company claims it has already invested $340m in the project.
For the NSW government – which approved the tailings dam for the mine, the key issue in dispute – the federal decision represents the potential loss of $200m in royalties.
Ms Plibersek said on Friday her decision to make a declaration under the ATSIHP Act did not kill the project as the company had claimed it had alternative sites.
“I have decided to make a partial declaration under section 10 of the ATSIHP Act to protect a significant Aboriginal heritage site near Blayney, in central west NSW, from being destroyed to build a tailings dam for a gold mine,” Ms Plibersek stated in her decision.
“The Wiradjuri/Wiradyuri people, who traditionally lived around the Bathurst area, have significant spiritual and cultural connections to the headwaters of the Belubula River.
“The headwaters are of particular significance to Wiradjuri/Wiradyuri people and are linked to ongoing cultural practices of the area. They have featured in many traditions practised for generations including by Aboriginal people transitioning from youth to young adulthood.
“Some of these traditions have been disclosed to me privately and must remain confidential due to their cultural sensitivity. If this site were to be desecrated, it would be an threat to the continuance of Wiradjuri/Wiradyuri culture.
“Because I accept that the headwaters of the Belubula River are of particular significance to the Wiradjuri/Wiradyuri people in accordance with their tradition, I have decided to protect them.
“Crucially, my decision is not to stop the mine.”
This is disputed by the company which in June warned Ms Plibersek via the Environment Department that a section 10s application would prevent development of the mine.
In a submission to the NSW Independent Planning Commission last year, the Orange Local Aboriginal Land Council disputed the application by other groups and claimed it didn’t object to the mine. The OLALC said it had been misrepresented in the section 10s application and that it had never opposed the mine.
“As stated previously, we are not against approval for the mine, but we’re not for it either. I suppose you’d say we are neutral,” the group said.
OLALC in its submission said that the development would not impact “any known sites or artefacts of high significance”.
It said of the currently identified items of Aboriginal Cultural Heritage that would be impacted, they could be properly managed and protected as long as conditions were placed on the project.
Minerals Council chief executive Tania Constable said the organisation had long warned about the “unclear, duplicative, and uncertain processes not only hurt the mining sector but also create barriers to much needed investment”.
“For Australia to remain an attractive investment destination, our regulatory processes must be transparent and based on clear, consistent evidence,” Ms Constable said.
“When transparency is compromised through shifting requirements, it not only undermines trust but also slows down vital projects integral to creating investment certainty, supporting regional jobs, businesses and the communities that benefit from minerals development.”
Ms Plibersek said both Liberal and Labor governments had previously made decisions under section 10s and rejected the warning of sovereign risk.
“Building a waste dump on that particular site would have destroyed the headwaters of the Belubula River – a place of particular significance for local Aboriginal people going back thousands of years,” said a spokesman for Ms Plibersek.
“The company is free to find another site for their waste dump. It’s understood there were more than four sites investigated with 30 options in the mix.”
Deputy Liberal leader Sussan Ley, when she served as environment minister, issued a section 10 decision involving the same traditional owner group (Wiradyuri traditional owners Central West Aboriginal Corporation) close to the Blayney gold mine site Ms Ley protected the site under section 10 for cultural significance to the Wiradjuri/Wiradyuri people, including “local Aboriginal narratives, songlines, ceremonies and cultural heritage”.
Opposition resources spokesman Susan McDonald said Ms Plibersek’s decision was a “blow to investor confidence by stealth”.
“It makes it impossible for investor boards to make decisions in to invest in Australia,” Senator McDonald said.
“The uncertainty is crippling for decision makers.”