Key facts
- The Federal Court has overturned a protection order issued under Indigenous heritage legislation.
The Federal Court has overturned a protection order issued by former Environment Minister Tanya Plibersek that had effectively blocked Regis Resources' controversial McPhillamys gold mine in New South Wales. The company argued the order, based on Indigenous heritage claims, was invalid due to procedural errors.
The court's decision removes a significant regulatory hurdle for Regis Resources' McPhillamys gold project, potentially allowing its development to proceed. It also highlights the complexities and legal challenges involved in balancing Indigenous heritage protection with resource development in Australia.
The Federal Court has overturned a rare protection order issued by former Environment Minister Tanya Plibersek, which had effectively blocked the development of Regis Resources' McPhillamys goldmine in New South Wales. The order was issued in 2024 under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act.
The Wiradyuri Traditional Owners Central West Aboriginal Corporation had requested the minister protect the headwaters and springs of the Belubula River, citing its significance in creation stories. Regis Resources argued that the protection order, which prevented the construction of a tailings dam in the river's headwaters, made the goldmine development unviable.
In a decision on Wednesday, Justice James Stellios ruled the order invalid. He stated that the court's decision and reasons, to be published on Friday, "say nothing about the merits of the claim... whether it’s a significant area or under threat of injury or desecration... those are matters within the authority of the minister... not the jurisdiction of this court."
During a hearing last year, Regis Resources contended that it was denied procedural fairness and that the government made errors in its process. The company's lawyer, Perry Herzfeld SC, highlighted that a Dreaming story influencing the government's decision was introduced two years after the initial application for the protection order.
Regis Resources stated that it anticipates the current Environment Minister, Murray Watt, will need to redetermine the application for a Section 10 Declaration, considering Justice Stellios' findings. Managing director Jim Beyer expressed pleasure that the court agreed the declaration was legally invalid and called the judgment a "significant and welcome step forward."
Despite the court's decision, Regis Resources is also pursuing an alternative development plan that involves co-disposing of filtered processed ore and waste rock into an Integrated Waste Landform, which would entirely avoid the area previously impacted by the declaration. Beyer stated the company is eager to move forward after considerable delay and uncertainty.
Pick the topics you care about. Get only what matters, on your cadence.