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In an interview with The Saturday Paper, Tanya Plibersek has defended her decision to halt a goldmine outside Bathurst while at the same time pushing for legislative reform. By Mike Seccombe.
Tanya Plibersek halts goldmine on Indigenous heritage grounds
Tanya Plibersek is adamant the decision to protect the headwaters of the Belubula River in central-western New South Wales was made purely on Indigenous heritage grounds. She rejects any suggestion the last-minute order was a proxy for environmental concerns.
“It relates to cultural heritage, the protection of First Nations cultural heritage, at imminent threat of destruction…” the environment minister tells The Saturday Paper.
“It is the headwaters and springs of the river that are the place where Uncle Bill Allen has talked about young boys being brought before initiation. And it’s the headwaters and springs and the river itself that feature in the creation stories of the Wiradjuri people.”
In an investor briefing on Monday, Jim Beyer, the chief executive and managing director of Australia’s third-biggest goldminer, said the decision rendered Regis Resources’ long-planned McPhillamys Gold Project currently “unviable”. As much as a billion dollars in profit for his company suddenly evaporated.
Worse, he told the investors, Plibersek’s decision “shatters any confidence that development proponents Australia-wide, both private and public, can have in project approval timelines and outcomes”.
“The implications of this decision are not limited to the resources industry but also to developers of infrastructure, renewable energy, property, as well as tourism operators, farmers and owners of freehold land more generally,” he said.
“And I note that there are a number of similar comments being made within the industry over the weekend and today.”
The Association of Mining and Exploration Companies (AMEC), a peak body for the extractive industry, came in firmly behind Regis – as might be expected, considering Beyer is also the group’s president.
“This is an incredibly disappointing decision that sets a truly terrible precedent for investment risk in Australia. This is the definition of sovereign risk,” the association’s chief executive, Warren Pearce, said.
“If any project, no matter how thoroughly consulted, negotiated, supported and assessed, can be knocked over by the objections of only a few people right at the end of the process, then how can any company or investor have confidence to invest in Australia?”
The heads of the Minerals Council and Business Council were among others who weighed in, assailing the regulatory system and warning it was scaring away investment.
Their complaints were amplified through reporting in conservative media, notably the Murdoch papers and Kerry Stokes’s The West Australian. The opposition also joined in, roundly attacking Plibersek’s decision.
The order to protect the Belubula River headwaters between Bathurst and Orange was made under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act), which allows the federal environment minister to make a declaration protecting a significant Aboriginal heritage area where it is under threat of “injury or desecration”.
An application for protection of the entire area of the mine was made in 2021 on behalf of a group of traditional owners, the Wiradyuri Traditional Owners Central West Aboriginal Corporation. The mine also was opposed by conservationists the Belubula Headwaters Protection Group. The Environmental Defenders Office provided legal representation to both groups – and campaigned for public donations to help fund the fight.
The involvement of the Environmental Defenders Office and non-indigenous environmentalists brought allegations that the process had been “hijacked” by green groups. That was the word used in a report in The Australian on Monday, which suggested the mine project had “been effectively denied based on a submission from a group of 17 people”.
The same word was used in a media release from the federal opposition’s shadow minister for resources, Senator Susan McDonald, who accused the Labor government of encouraging anti-mining activists to use cultural considerations for their own purposes.
“This is a ‘death by stealth’ approach, where the government can claim they aren’t targeting mining directly,” McDonald said.
“Genuine cultural concerns are being weaponised to further anti-mining interests.”
The shadow minister for Indigenous Australians, Senator Jacinta Nampijinpa Price, went further, implying that the mine opponents weren’t Aboriginal at all.
Her comments ran in The Nightly, the new online newspaper established in Western Australia earlier this year, funded by media mogul Kerry Stokes and mining billionaires Chris Ellison and Gina Rinehart.
The headline on the story was “Regis Resources: Jacinta Nampijinpa Price fumes over fake Indigenous Australians after NSW gold mine shafted”.
Price was quoted as saying: “We know, as Indigenous Australians, that there are a lot of people who are claiming to be Indigenous, who are, in fact, not Indigenous, and this is a growing concern…
“It certainly is amongst the Wiradjuri people … I have many conversations with those who are legitimate Wiradjuri people as well.”
It was an outrageous insinuation, made without any evidentiary basis. Even Jim Beyer, in his attack on the decision, did not question the heritage of the applicants – although he and others did question the legitimacy of their claim to speak for the Wiradjuri.
As Beyer told his investors, during the approval process the company consulted with various stakeholders including the Orange Local Aboriginal Land Council, “who are the statutory body who have authority to speak for the area on which the McPhillamys project is located” under the Aboriginal Land Rights Act, 1983.
Having conducted investigations into the area’s Indigenous heritage “over a number of years”, he said, the OLALC made a submission stating McPhillamys “would not impact any known sites or artifacts of high significance, and that impacts on the Aboriginal heritage could be appropriately managed and mitigated”.
The whole process had taken seven years, but finally all the major regulatory boxes seemed to have been ticked. The new mine had been given the go-ahead by the then NSW Department of Planning and Environment and the state’s Independent Planning Commission and granted approval under the federal Environment Protection and Biodiversity Conservation Act.
“Regis then had every confidence that, from a regulatory point of view, McPhillamys was an approved project,” Beyer said, “with no significant show stoppers from a government perspective.”
Beyer said Plibersek’s decision took him by surprise. Section 10 applications are rare, although they are becoming less so. Successful ones are even rarer. Plibersek says she has refused a number. This was the first she had granted.
The decision was only a partial win for the applicants. They had sought to have the entire 2500-hectare mine site protected; she granted protection for 400 hectares.
It happens, however, that the protected area covers virtually the entirety of a planned tailings dam.
The wastewater from goldmining is notoriously toxic and tailings dams notoriously prone to mishap. The proposed dam would be smack on the headwaters of the Belubula River, which flows into the Lachlan, part of the vast Murray–Darling Basin.
Still, Plibersek tells The Saturday Paper, protecting cultural heritage and development are not mutually exclusive.
“There’s actually nothing to stop the mine going ahead,” the environment minister says. “They just need to find a new location for the tailings dump that is not on a culturally significant site for Wiradjuri people. They’ve got 2500 hectares of land they already own. I’ve made a declaration over 400 hectares of that. They’re free to use the other 2100 hectares.”
Plibersek said the company “has indicated to me that it has assessed around four sites and 30 potential options for the tailings dam”.
Jim Beyer, however, told a different story in his Monday teleconference with major investors. He said alternative sites had been ruled out.
He did not categorically rule out the project going ahead, but nor did he offer much hope it would proceed.
The company would explore the possibility of a legal challenge, which would take time and money. Failing that, it could “re-evaluate alternative options” for the site. That could take more money and, Beyer claimed, potentially another five or more years.
“And given what we’ve seen here,” he said, “you can go through an extensive process to satisfy all approval parties and still be over-ridden.”
Regis Resources may well be bluffing. It is hard to imagine it abandoning such a potentially lucrative development and some observers suggest the real intent is to make a political point.
The mining industry has complained for several years that applications made under the ATSIHP Act are proliferating. While mines are a more common target, they also affect other developments.
AMEC referred The Saturday Paper to a July 2022 report by the global law firm Ashurst, which found the number of applications had been trending up since 2019.
“There have been an unprecedented number of new applications made in the last 12 months…” it said.
“With lodgement occurring faster than resolution, newly installed Minister for the Environment and Water, Tanya Plibersek, has some difficult decisions ahead.”
The report detailed a dozen examples, including the McPhillamys goldmine project. Another application related to a proposed go-kart track at McPhillamy Park, not far from the mine site and made by the same group, the Wiradyuri Traditional Owners Central West Aboriginal Corporation.
In April 2021, then Liberal environment minister Sussan Ley made a section 10 declaration blocking the development – which rather undermines the suggestion by her colleague, Senator Price, that the corporation consists of people who are not Indigenous.
The list of Section 10 applications related to a wide range of proposed developments, among them roadworks near Cooroy in Queensland, underground power lines near Kempsey, a residential development in Jindabyne in NSW, and a wind farm on Robbins Island in Tasmania.
Plibersek says the government is proposing reforms that would speed up the process of approval. These are currently stuck in the Senate, due to opposition from both the Coalition and Greens, even though there are elements of the legislation that would address the concerns of both the left and right.
“What’s in this for the Greens?” Plibersek asks.
“Australia’s first ever Environment Protection Agency with strong new powers and penalties. We will be moving the penalty threshold from under $15 million to $780 million for serious, intentional damage to the environment. The EPA will have stop-work powers, which I don’t currently have, where there’s a threat of imminent destruction. It’ll have strong new enforcement powers and resources to deal with issues like illegal land clearing.
“There are real-time updates on how we’re going against our environmental targets, like protecting 30 per cent of our land and 30 per cent of our ocean by 2030.”
For the likes of Regis Resources and the Coalition parties, she says, there is an expedited approvals process, better data and better guidance on what is required to get a project up.
As things currently stand, she acknowledges, “quite often we’re asking proponents to provide environmental impact statements that have been done by other proponents in the same area, just a couple of years earlier”.
“We’re investing substantially in collecting information so that proponents don’t have to do these EISs themselves again and again, often on the very same patch of land, or often for the same species on the same patch of land,” she tells The Saturday Paper.
“If proponents want to use the verified [government] data that’s available, they can cut substantial amounts of time off their processing.”
Progress already has been made, Plibersek says.
“We’ve doubled on-time approvals since coming to government. I ticked off a wind farm in nine weeks recently because the proponents had the right information, which meant that they could avoid threatened species or any kind of vulnerable ecological communities.”
What about the growth area of applications under the ATSIHP Act?
“Well, one of the proposals we have is a new national standard for First Nations consultation, which would make it clear much earlier in the piece who the right people are to talk to,” she says.
“The more we send those clear signals up front, the less of a black box it is for proponents. They raise this all the time with me. All I can do is work with the legislation I’ve got at the moment, which is 25 years old.
“I would love to renovate the legislation so we get better environmental protections and faster, clearer decisions, but that relies on the Senate doing its job.”
This article was first published in the print edition of The Saturday Paper on August 24, 2024 as "Rivers and gold".
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