Analysis: Australian Mine Conflict Reignites Tensions Over Aboriginal Heritage

By Melanie Burton

MELBOURNE (Reuters) – Nyree Reynolds, a Wiradjuri elder, refers to her home west of Sydney as the valley of the Bilabula, named after the river significant to her people. She emphasized to state planning regulators, “No one has the right to destroy this,” highlighting the river’s importance in Wiradjuri creation stories.

In response to her objections, the Australian government instructed the mining company Regis Resources in August to identify a new location for a dam associated with a A$1 billion gold project. This directive was based on the premise that the proposed site for storing rock and chemical waste would have irreparable effects on the cultural connection to the river.

The decision, made by Environment Minister Tanya Plibersek under a seldom-used Aboriginal heritage protection law, has sparked backlash from mining organizations, which argue that Regis followed all necessary legal protocols. Critics contend this ruling introduces a sovereign risk for developers.

This governmental action contributes to the uncertainty that mining companies have experienced since Rio Tinto legally destroyed ancient Aboriginal rock shelters at Juukan Gorge four years ago. It also underscores the urgent need to reform heritage protection laws.

Several resource projects are currently under review due to similar objections, allowing Aboriginal communities to apply for protection of culturally significant areas if other legal options have failed.

Warren Pearce, CEO of the Association of Mining and Exploration Companies, noted, “You can get all the state environmental approvals, all the federal environmental approvals, and at the end of the process a Section 10 … essentially a federal minister can … make your project unviable,” describing it as a definition of sovereign risk.

While Reynolds opposed the Regis project, a local Aboriginal group authorized to represent the Wiradjuri people had assessed that potential impacts could be managed.

In August, Regis announced it was exploring legal avenues after reducing the estimated value of its project by over $100 million. This decision regarding Regis’ project marks the second occasion in recent months where the government has sided with Indigenous groups against mining interests.

ERA, primarily owned by Rio Tinto, is currently suing the government over procedural fairness after the non-renewal of its exploration lease on uranium-rich land.

Some government officials and investors suggest that developers should engage with Indigenous communities more extensively during project planning, yet new heritage protection laws to facilitate this process are still pending.

The timeline for finalizing this legislation remains unclear. Outside of Western Australia, which has implemented some heritage reforms, the industry is left to navigate a fragmented mosaic of outdated state laws to manage heritage protection while Australia promotes itself as a provider of ethical metals.

VOTES AT STAKE

Current projects facing unresolved Section 10 objections include Bellevue Gold’s proposal to mine under a desert lake and Woodside’s Scarborough project, linked to a gas plant in an area rich in ancient rock art recognized for potential UNESCO World Heritage listing. Both projects are situated in Western Australia.

Political dynamics further complicate matters, especially with the center-left Labor government gearing up for an election in 2025. Analysts believe Woodside likely won’t face the same repercussions as Regis, given the Scarborough project’s critical political importance to the Labor government in Western Australia.

Plibersek’s office declined to comment on the Scarborough project, citing ongoing considerations.

Both Woodside and Bellevue have stated their commitments to managing Aboriginal cultural heritage responsibly. Bellevue confirmed it has obtained approval from the Tjiwarl native title group for its plans.

The government’s actions come in the wake of a failed referendum last year aimed at providing Indigenous Australians with a special recognition in the constitution and an advisory role in legislative matters.

Some speculate that the government is trying to appease urban voters who supported the referendum but may gravitate toward the Greens rather than backing mining initiatives.

Scott Franks, a Wonnarua man who has filed multiple Section 10 objections in the coal-rich Hunter Valley region, criticized the government’s attempts to enhance its image post-referendum failure. He stated, “This is a government trying to scramble to make itself look good.”

When asked whether her decision on Regis was influenced by Green voters, Plibersek insisted on August 28 that her choice was based on factual evidence following widespread consultation.

Malarndirri McCarthy, Australia’s minister for Indigenous Australians, asserted the government is actively collaborating with Aboriginal groups to develop new heritage protection laws, emphasizing the concern for preserving First Nations heritage values.

TIGHTER RULES ON THE WAY

A crucial aspect that must be clarified is who developers are obligated to consult to protect significant sites on Indigenous traditional lands. Plibersek addressed this issue, stating, “Our whole objective is to remove this sort of uncertainty and make it clear who speaks for the Country.”

Regis mentioned that it consulted with 13 different stakeholders during its permitting process. The company stated, “Regis takes its relationship with Aboriginal stakeholders very seriously and conducted extensive engagement with Aboriginal parties from an early stage.”

To aid miners in navigating consultations on Aboriginal heritage protection amid evolving rules, the Responsible Investment Association Australasia collaborated with First Nations, the government, and mining giant BHP to establish best practices.

The association’s co-CEO, Estelle Parker, remarked, “The current laws remain inadequate, which is why we need investors and corporates to step up.” Among its recommendations, the association encourages miners to adopt free, prior, and informed consent protocols that can be revoked at any time.

Despite concerns regarding practicality, law firm Ashurst advised miners to familiarize themselves with these new guidelines, which are increasingly likely to align with forthcoming changes in federal heritage laws aimed at prioritizing Indigenous rights and interests.