A mining company developing a goldmine in the central west of New South Wales has told the federal court the government did not properly assess a Dreaming story at the centre of a heritage protection order issued over part of the site.
Regis Resources has challenged the decision by the former environment minister Tanya Plibersek to issue the order last year under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act.
The company has said the protection order, while affecting only part of the site and not the area intended to be mined, would make its McPhillamys goldmine development at Blayney unviable. The order blocks the company from building a tailings dam in the headwaters of the Belubula River.
At a three-day hearing before the federal court this week, Regis Resources claimed the government made several errors in the process it followed and the order should be declared invalid.
The company’s lawyer, Perry Herzfeld SC, argued 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.
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He said 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. The company claims the Dreaming story should have been referred back to the reporter for consideration or that the additional information should have been deemed so significant as to require a fresh application.
Instead, Herzfeld argued, the government followed an “ad hoc” process of taking further submissions to consider the new information and this had affected the procedural fairness afforded to Regis Resources.
“The process adopted by the minister skipped that section 10 reporter process entirely in relation to this critical matter,” Herzfeld said.
The company alleged the government made several other errors or failed to sufficiently investigate the new information. Among its claims, it argued the government should have imposed a timeframe specifying the duration for which the protection order would apply.
It also questioned why a key knowledge holder for the Dreaming story had not raised it in an earlier consultation session with the section 10 reporter.
The company questioned the government’s acceptance of a blue-banded bee public mural in Bathurst as evidence the story was broadly known to Aboriginal groups in the area, arguing it had been painted after the initial section 10 application was made. In responses, the government’s lawyer, Tiffany Wong SC, defended this, noting 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.
“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 told the court on Thursday that 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.
Wong said the department had “bent itself over backwards to make sure everybody had a right to be heard” and provide responses to the new information. She argued 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 told the court the company’s argument that a timeframe should apply to the protection order was “counterintuitive” and the court should be satisfied an order could be indefinite.
Regis Resources also told the court the government failed to properly consider the impact the order would have on the viability of the McPhillamys project. This was disputed by the government, which said this had been considered but that the potential “pecuniary” impacts did not “outweigh the impacts and permanent loss to Aboriginal heritage in the declared area”.
The government argued the case should be dismissed with costs.
