The federal court has overturned a rare protection order issued by former environment minister Tanya Plibersek under Indigenous heritage legislation, which the company said effectively blocked a controversial goldmine in the central west of New South Wales.
Regis Resources challenged the decision by the former minister to issue the order in 2024 under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act.
The Wiradyuri Traditional Owners Central West Aboriginal Corporation asked the minister to protect the headwaters and the springs of the Belubula River as a site central to creation stories.
The company said at the time 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 blocked the company from building a tailings dam in the headwaters of the Belubula River.
In a decision on Wednesday morning, Justice James Stellios ruled the order was invalid. The reasons for the court’s decision will be published on Friday.
According to the ABC, Stellios said on Wednesday the court’s decision and his reasons “say nothing about the merits of the claim ... whether it’s a significant area or under threat of injury or desecration ... those are matters within the authority of the minister ... not the jurisdiction of this court.”
At a three-day hearing last year, Regis Resources argued it had been denied procedural fairness and the government made errors in the process it followed before issuing the protection order.
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.
In a statement, the company said it anticipated the current environment minister, Murray Watt, “will be required to redetermine the application for a Section 10 Declaration, having regard to the relevant findings made by Justice Stellios in the judgment”.
“Today’s federal court judgment is a significant and welcome step forward for the McPhillamys Gold Project,” managing director Jim Beyer said.
“The judgment finding that the Section 10 Declaration is legally invalid vindicates the position we have held since the Declaration was made in August 2024, and we are extremely pleased the Court has agreed.”
Watt said the government respected the court’s decision.
“I note the judge specifically made the point that his decision did not concern the merits of the minister’s decision. Instead, the court’s decision was based on an error in the process used to grant the declaration,” he said.
He said the government was carefully considering the judgment and taking advice on next steps.
“We understand this outcome will matter deeply to the Wiradyuri Elders who brought the application, as well as to the company and its workforce, and to the Blayney community. We’ll work through it as quickly as possible.”
Regis Resources said because any process to redetermine the protection order application could be protracted and “or for the outcome not to be in Regis’ favour”, the company was still pursing an alternative approach to the development.
The company said that plan would involve co-disposal of filtered processed ore and waste rock into a single facility – referred to as an Integrated Waste Landform – “and entirely avoids the area impacted by the declaration”.
“After considerable delay and uncertainty, and more than two years of time lost, we are eager to move forward,” Beyer said.
“We look forward to engaging constructively with the Department through the redetermination process, and to advance one of Australia’s largest undeveloped gold projects – one with the potential to deliver lasting economic and social benefits to the Central New South Wales region and our broader stakeholder community.”
New South Wales premier, Chris Minns, said in 2024 he was disappointed the protection order was issued and believed the federal minister’s decision was an error.
Before the court’s decision on Wednesday morning, Minns said he wanted the mine to proceed.
“I want that mine to go ahead,” he said.
“I understand that that’s not the view of the federal government, but we need the investment.
“There are more people in mining jobs in New South Wales today than there were when we were elected in March of 2023. We’re proud of that. It’s a really important part of our economy.”
Watt said the court’s findings were an example “how complex the current cultural heritage processes are for everyone involved”.
“First Nations people, industry and State and Territory governments have been clear with us for some time that they feel the Aboriginal and Torres Strait Islander Heritage Protection (ATSIHP) Act doesn’t give enough certainty,” he said.
“We remain committed to working alongside them on a better system.”
The Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC), which supported the heritage protection order application, said while it was disappointed by the court’s decision, it respected the judicial process.
A spokesperson said the corporation would review the judgment “and its implications for Wiradyuri people, our cultural heritage, and the ongoing protection of Country”.
“This case has always been about protecting places of profound cultural and spiritual significance to Wiradyuri people,” they said.
“The areas covered by the protection declaration, including the headwaters of the Belubula River, remain deeply important to our community and to the continuation of cultural knowledge, practices, and responsibilities that have been maintained for countless generations.
“The court’s decision does not diminish the cultural significance of these places, nor does it alter our obligation to speak for and care for Country.”
with AAP
