Jenny Coe Munro, an Indigenous Australian of Wiradjuri descent, covering a campfire from rain at the Aboriginal Tent Embassy, a site of protest since 1972, in Canberra, Australia; writing on a car displaying support for the ‘Yes’ vote in Australia’s referendum on Indigenous issues. — Reuters
WIRADJURI elder Nyree Reynolds calls her home west of Sydney “The Valley of the Bilabula”, the indigenous name for its river.
The river features in Wiradjuri stories about the creation of their land, and Reynolds firmly told state planning regulators, “No one has the right to destroy this.”
In August, the Australian government ordered miner Regis Resources to find a new dam site for its A$1bil gold project.
The decision was made under a rarely used Aboriginal heritage protection law, as the proposed location for storing rock and chemical waste would irreparably harm the cultural significance attached to the river.
This has sparked an outcry from mining groups who argue that Regis followed all legal processes, claiming the decision raises sovereign risk for developers.
This government action adds to the uncertainty miners have faced since Rio Tinto legally destroyed ancient Aboriginal rock shelters at Juukan Gorge four years ago, intensifying calls for an overhaul of heritage protection laws.
At least three other resource projects are currently under review, similar to Regis, due to Section 10 of the law, which allows Aboriginal people to apply for protection of significant areas when other legal avenues have failed.
Warren Pearce, CEO of the Association of Mining and Exploration Companies, said, “You can get all the state and federal environmental approvals, but in the end, a federal minister can make your project unviable. That’s the definition of sovereign risk.”
While Reynolds objected to Regis’ mine, a local Aboriginal group representing the Wiradjuri people, authorised by the state to speak for cultural heritage, had concluded that the impacts of the project could be managed.
Regis announced in August that it is considering its legal options after writing down the value of its project by more than US$100 million.
The government’s decision regarding Regis’ project was the second in as many months to prioritise indigenous groups over miners.
ERA, majority-owned by Rio Tinto, is suing the government on procedural fairness grounds after its exploration lease on uranium-rich land was not renewed.
Government officials and some investors suggest that developers need to engage earlier and more deeply with indigenous groups when planning projects, but new laws governing heritage protection that would facilitate this process have yet to be finalised.
— Reuters
Only Western Australia has made some heritage reforms, leaving the industry reliant on a patchwork of outdated state legislation to manage heritage protection while Australia promotes itself as a supplier of ethical metals.
Among the projects facing outstanding Section 10 objections are Bellevue Gold’s plan to dig under a desert lake and Woodside’s Scarborough natural gas project, which is intended to feed a gas plant in a region rich in ancient rock art that the government has nominated for a Unesco World Heritage listing.
However, not all objections carry equal weight politically, especially with the centre-left Labor government facing an election in 2025.
Analysts suggest that Woodside is unlikely to encounter the same obstacles as Regis, given the Scarborough project’s significant political importance in Western Australia.
Plibersek’s office stated it could not comment on the Scarborough project as it is under consideration.
Both Woodside and Bellevue maintain that they take their responsibilities to manage Aboriginal cultural heritage seriously.
Bellevue said it has permission from the Tjiwarl native title group to proceed under its heritage management plan.
The government’s recent actions follow a failed referendum last year aimed at granting indigenous Australians special recognition in the constitution and an advisory voice to lawmakers.
Some critics argue that the government is now acting to appease inner-city east coast voters who supported the referendum and may consider backing the Greens over mining.
Wonnarua man Scott Franks, who has filed three Section 10 objections against developments in the coal-rich Hunter Valley region, said, “Here is a government trying to scramble to make itself look good, because it absolutely gutted the opportunity for us to have a voice in Parliament.”
When asked whether her decision on Regis catered to Green voters, Plibersek asserted that her choice was based on facts.
Malarndirri McCarthy, Australia’s Minister for Indigenous Australians, stated that the government is diligently working with Aboriginal groups on new heritage protection laws.
She emphasised the government’s commitment to preserving First Nations heritage values across Australia.
A key issue is clarifying whom developers need to consult to ensure that projects do not harm significant sites on indigenous lands.
Plibersek said, “Our whole objective is to remove this sort of uncertainty that people are dealing with to make it clear who speaks for the Country.”
Regis claimed it had consulted with 13 different groups and individuals during the permitting process, stating, “Regis takes its relationship with the Aboriginal stakeholders at our operations very seriously and conducted extensive engagement with Aboriginal parties from an early stage.”
To assist miners in managing consultations regarding Aboriginal heritage protections while the rules are revised, the Responsible Investment Association Australasia, which represents 75% of the country’s institutional investors, collaborated with First Nations, the government, and BHP on best practices.
The association’s co-CEO, Estelle Parker, noted that the current laws remain inadequate, highlighting the need for proactive engagement from investors and corporations.
Among its recommendations, the association advocates for miners to adhere to the principle of free, prior, and informed consent, which can be withdrawn at any time.
While this guide is considered ambitious and perhaps unrealistic by law firm Ashurst, they advised miners to familiarise themselves with it.
It said: “Be aware that change will come to federal heritage laws. When it does, it will be closer to the expectations expressed in these recent publications than the current legal framework.” — Reuters
