Mining company claims government didn’t follow proper process for Aboriginal heritage protection order | Indigenous Australians

Mining company developing a gold mine in the central west N.S.W. told a federal court that the government failed to adequately assess Dreaming's history as the basis for a heritage protection order issued for part of the property.

Regis Resources challenges former environment minister's decision Plibersek asked made an order last year under Section 10 of the Aboriginal and Torres Strait Islander Heritage Act.

The company said the protective order, although only affecting part of the site and not the area earmarked for mining, would make development of the McPhillamis gold mine in Blayney unviable. The order prohibits the company from constructing a tailings dam in the upper reaches of the Belubula River.

At a three-day hearing in federal court this week, Regis Resources said the government made several mistakes during the process and the order should be invalidated.

The company's lawyer, Perry Herzfeld SC, argued that the story of the blue striped bee dreams, which influenced the government's decision to protect the area, was not raised until two years after the original application for the section 10 order was made.

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By this time, he said, the expert reporter appointed by the government to investigate the claim had already completed his report and found that it had not met the required threshold for defence. The company argues that the Dreaming story should have been returned to the reporter for review or that the additional information should have been deemed so important that a new application would have been required.

Instead, Hertzfeld argued, the government followed an “ad hoc” process for accepting additional submissions to consider new information, and this affected the procedural fairness provided to Regis Resources.

“The Minister's process skips the Section 10 reporter process entirely on this important issue,” Herzfeld said.

The company said the government made several other mistakes or did not sufficiently investigate new information. Among his demands, he argued that the government should have established a time frame determining the duration of the protective order.

He also wondered why someone with key knowledge of the Dreaming's history had not raised the issue in a previous consultation with the Section 10 reporter.

The company questioned the government's acceptance of a public mural of a blue streaked bee in Bathurst as evidence that the story was widely known to Aboriginal groups in the area, arguing that it was painted after the original section 10 application was made. Government counsel Tiffany Wong CC responded, noting that the mural was painted two years before the story of the blue streaked bee dreamed The strip was presented to the government as part of the Section 10 process.

“So the department had a very reasonable view that this was evidence that other people had accepted the story,” she said.

On Thursday, Wong told the court that uncovering the story of the blue-banded bees was a difficult process for the First Nations people involved and that many factors went into the decision to pass on the story and when to do it.

Wong said the department “has made every effort to make sure everyone has the right to be heard” and provide responses to new information. She argued that a new application was not required because in other cases it would result in a change in the geographical location of the area being considered for protection.

Wong told the court that the company's arguments that the time frame for which the protective order must apply was “illogical” and that the court should be satisfied that the order could be indefinite.

Regis Resources also told the court that the government had not adequately considered the impact of the order on the viability of the McPhillamys project. This was disputed by the government, which said the option had been considered but the potential “material” consequences did not “outweigh the consequences and irreversible loss of Aboriginal heritage in the claimed area”.

The government argued that the case should be dismissed with costs awarded.