Analysis: Australian mine fight reignites Aboriginal heritage tensions

Regis Resources

01/10/2024 01:57

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      Australia tries to better balance Aboriginal heritage,
mining
    

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      Mining group says application of laws worsens sovereign
risk
    

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      National overhaul of heritage laws already a year late
    

        * 
      Miners must prepare for tougher regulation, law firm warns
    

  
    By Melanie Burton
       MELBOURNE, Oct 1 (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, she told
state planning regulators, "And no one has the right to destroy
this."
    On her objections, the Australian government in August
ordered miner Regis Resources  RRL.AX  to find a new dam site
for a A$1 billion ($685 million) gold project on the grounds its
proposed location for storing rock and chemical waste would
irreparably harm culture attached to the river.
    The decision by Environment Minister Tanya Plibersek under a
rarely used Aboriginal heritage protection law has stoked an
outcry from mining groups who say Regis followed all legal
processes and the decision raises sovereign risk for developers.
    The government's action adds to the uncertainty miners have
faced since iron ore giant Rio Tinto  RIO.L  legally destroyed
ancient Aboriginal rock shelters at Juukan Gorge four years ago
and raises the urgency to overhaul heritage protection laws.
    At least three other resources projects are facing review,
like Regis did, under Section 10 of the law that allows
Aboriginal people to apply to protect areas important to them
when other legal avenues have failed.
    "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," said Warren Pearce, CEO of the Association of
Mining and Exploration Companies. 
    "That's the definition of sovereign risk."
    While Reynolds objected to Regis' mine, a local Aboriginal
group representing Wiradjuri people, authorised by the state to
speak for cultural heritage, had concluded that impacts from the
project could be managed.
    Regis said in August it is considering its legal options
after writing down the value of its project by more than $100
million. 
    The decision on Regis' project was the second by the
government in as many months to back Indigenous groups over
miners. 
    ERA  ERA.AX , majority owned by mining giant Rio Tinto
 RIO.L , is suing the government on procedural fairness grounds
after it did not renew the miner's exploration lease on uranium
rich land.
    Government officials and some investors say developers need
to engage earlier and more deeply with Indigenous groups when
planning projects, but new laws governing heritage protection
that would assist the process are yet to arrive.
    The government has not said when it expects to finalise the
legislation. Only Western Australia has made some heritage
reforms, leaving the industry relying on a patchwork of old
state legislation to manage heritage protection at a time when
Australia is marketing itself as a supplier of ethical metals. 
        
    VOTES AT STAKE
    Resources projects with outstanding Section 10 objections
include miner Bellevue Gold's  BGL.AX  plan to dig under a
desert lake and Woodside's  WDS.AX  Scarborough natural gas
project that will feed a gas plant in a region rich in ancient
rock art that the government has nominated for a UNESCO World
Heritage listing. Both projects are in Western Australia.
    But not all objections are equal when it comes to politics,
especially with the centre-left Labor government facing an
election in 2025.
    Woodside is unlikely to face the same setback as Regis, said
MST Marquee senior energy analyst Saul Kavonic, as the $12.5
billion Scarborough gas project is "extremely politically
important to the Labor government in Western Australia". 
    Plibersek's office said it could not comment on the
Scarborough project as the issue is under consideration.
    Both Woodside and Bellevue said they take their
responsibilities to manage Aboriginal cultural heritage
seriously. 
    Bellevue said it has permission from the Tjiwarl native
title group to dig under the lake as part of a heritage
management plan.
    The government's action comes after it failed in a
referendum last year that sought to give Indigenous Australians
special recognition in the country's constitution and an
advisory voice to lawmakers.
    Some people think the government is now acting to appease
inner city east coast voters who backed the referendum and who
may want to vote for the Greens rather than support mining.  
    "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," said Wonnarua man Scott Franks, who
has filed three section 10s against developments in the state's
coal rich Hunter Valley region and lost them all.
    When asked if she was catering to Green voters with her
decision on Regis, Plibersek told reporters on Aug. 28 that she
had consulted widely: "I made the decision based on facts."
        Australia's minister for Indigenous Australians,
Malarndirri McCarthy, said the government was working hard with
Aboriginal groups on new heritage protection laws.
    "The Australian Government is deeply concerned about the
destruction of First Nations heritage values anywhere in
Australia," McCarthy said in a statement to Reuters.
    
    TIGHTER RULES ON THE WAY
    A key issue that needs to be addressed is to make clear
exactly who developers need to consult to ensure projects do not
harm important sites on the traditional lands or countries of
Indigenous groups. 
    "Our whole objective is to remove this sort of uncertainty
that people are dealing with to make it clear who speaks for the
Country," Plibersek told Australian Broadcasting Corp on Aug.
28.
    Regis said it had consulted with 13 different groups and
individuals during the permitting process.
    "Regis takes its relationship with the Aboriginal
stakeholders at our operations very seriously and conducted
extensive engagement with Aboriginal parties from an early stage
in the approvals process," it said in a statement to Reuters.
    To help miners manage consultations on protecting Aboriginal
heritage while the rules are revised, the Responsible Investment
Association Australasia, which counts 75% of the country's
institutional investors as members, worked with First Nations,
the government and mining giant BHP  BHP.AX  on best practices. 
    "The current laws remain inadequate, which is why we need
investors and corporates themselves to step up," the
association's co-CEO, Estelle Parker, said. 
    Among its recommendations, the association urges miners to
adhere to free, prior and informed consent that can be withdrawn
at any time.
    The guide is "ambitious and probably unrealistic", law firm
Ashurst said in a 2024 report, but it advised miners to get
familiar with it.
    "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."
    
($1 = 1.4601 Australian dollars)

 (Reporting by Melanie Burton; Editing by Sonali Paul)
 ((melanie.burton@thomsonreuters.com Twitter: @MelanieMetals;
+613 9286 1421; Reuters Messaging:
melanie.burton.thomsonreuters.com@reuters.net))