By Melanie Burton

MELBOURNE (Reuters)

Wiradjuri elder Nyree Reynolds refers to her home west of Sydney as the valley of the Bilabula, named after the river. She emphasized the cultural significance of the river in Wiradjuri stories: “And no one has the right to destroy this.”

Government Action

In August, the Australian government ordered miner Regis Resources to find a new dam site for its A$1 billion ($685 million) gold project, citing concerns that the proposed rock and chemical waste storage location would irreparably harm the cultural heritage associated with the river. This decision, made by Environment Minister Tanya Plibersek under a rare Aboriginal heritage protection law, has caused backlash from mining groups, who argue that Regis followed all legal protocols and that this raises concerns over sovereign risk for developers.

Aftermath of Juukan Gorge

The government’s decision adds to the unpredictability miners have experienced since the iron ore giant Rio Tinto legally destroyed ancient Aboriginal rock shelters at Juukan Gorge four years ago. There is an urgent call to overhaul heritage protection laws.

Three other resource projects are currently under review due to Section 10 of the law, which permits Aboriginal communities to apply for protection of culturally significant areas when other legal options have been exhausted. Warren Pearce, CEO of the Association of Mining and Exploration Companies, remarked, “You can get all the state environmental approvals, all the federal approvals, and at the end, a Section 10… effectively allows a federal minister to render your project unviable.”

While Reynolds expressed objections against Regis’ mine, a local Aboriginal group, authorized by the state to represent Wiradjuri interests, concluded that the impacts of the project could be managed. Regis announced plans to explore legal options due to a write-down exceeding $100 million.

Political Considerations

The decision against Regis marks the second instance within months where the government prioritized Indigenous interests over mining companies. ERA, majority owned by Rio Tinto, is suing the government for procedural fairness after not renewing a lease on uranium-rich land.

Some officials and investors believe that developers must engage with Indigenous groups more thoroughly and earlier during planning. However, new laws to aid this process are still pending. The government has not specified a timeline for finalizing this legislation, resulting in the industry relying on outdated state laws while Australia seeks to promote itself as a supplier of ethical metals.

Specific Projects Under Scrutiny

Projects facing Section 10 objections include Bellevue Gold’s plans to dig under a desert lake and Woodside’s Scarborough natural gas project, which is tied to a region rich in ancient rock art and proposed for UNESCO World Heritage status. Despite objections, Woodside’s project is considered politically crucial to the Labor government, making similar setbacks less likely.

Plibersek’s office refrained from commenting on the Scarborough project due to ongoing considerations. Both Woodside and Bellevue have stated their commitment to managing Aboriginal cultural heritage responsibly.

The government is reacting following a failed referendum to grant Indigenous Australians special recognition in the constitution, which has led some to believe that current actions aim to placate urban voters who supported the referendum.

Scott Franks, a Wonnarua man who has filed Section 10 objections in the Hunter Valley, criticized the government’s attempt to regain public favor, stating, “Here is a government trying to scramble to make itself look good.”

When questioned about appeasing Green voters with her decision on Regis, Plibersek asserted that her decision was factual. Malarndirri McCarthy, Australia’s minister for Indigenous Australians, confirmed that the government is collaborating with Aboriginal groups on new heritage protection laws, emphasizing the government’s concern for First Nations heritage.

Future of Heritage Protection

One critical issue that must be resolved is clarifying who developers should consult to prevent harm to significant sites on Indigenous lands. “Our objective is to eliminate uncertainty and clarify representation for traditional owners,” Plibersek remarked.

Regis claimed to have consulted 13 groups and individuals during the permitting phase, while noting their commitment to working with Aboriginal stakeholders.

The Responsible Investment Association Australasia, representing a majority of institutional investors, collaborated with First Nations, the government, and BHP to develop best practices to aid miners in protecting Aboriginal heritage during the rule revision process. They urge adherence to principles of free, prior, and informed consent, which can be retracted at any point.

Although the guidelines may seem ambitious, law firm Ashurst advised miners to familiarize themselves with potential upcoming changes to federal heritage laws.

Note: $1 = 1.4601 Australian dollars.