Controversial goldmine subject of new Aboriginal protection application

A faction of the Orange Local Aboriginal Land Council (OLALC) has made a fresh bid to halt a billion-dollar New South Wales gold project weeks after the Federal Court threw out a protection order over the same area.

"Concerned members" of the council have submitted a section 9 application, seeking emergency protection for a section of the McPhillamys Gold Project near Blayney, in the state's Central West.

The application, submitted independently of the OLALC, describes the area as being under "imminent threat of desecration".

The concerns of dozens of members were raised in an email seen by the ABC that was sent to the federal Environment Minister Murray Watt this week.

"We respectfully urge you to consider this application as a matter of urgency and take all available lawful steps to protect these Sacred Waters from irreversible harm," the application said.

"The Bila Bula [Belubula] is far more than a River."

"It is a Sacred Songline of particular significance to the Wiradjuri people … [it] is sacred, the giver of life and the lifeblood of our people."

Former minister's decision overturned

On October 14, Regis Resources successfully challenged the former federal environment minister Tanya Plibersek's decision in August 2024 to grant an Aboriginal protection order over the site in question.

The project had been put on hold and the company said the minister's declaration meant the open-cut operation was "not viable".

The original application was made by Wiradyuri elder Aunty Nyree Reynolds and supported by the Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC).

The declaration was made under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act to protect the headwaters and the springs of the Belubula River, where the tailings dam that holds mining waste was to be built.

But a fortnight ago the court ruled Ms Plibersek's decision was "invalid" due to procedural errors with how additional information about the area's cultural significance was assessed.

In considering the fresh application, the environment minister must now decide if he is satisfied that the site is a significant Aboriginal area that is under serious and immediate threat of injury or desecration.

The Department of Climate Change, Energy, the Environment and Water (DCCEEW) has confirmed the application is being assessed, and no decision has been made.

OLALC CEO Annette Steele said she expected the department would ask OLAC to respond to the application submitted privately by a group of its members.

"Our response will be guided by the senior Wiradjuri elders who hold cultural authority for the area in question," Ms Steele said.

She said that all Aboriginal people within the OLALC's boundaries were eligible to be members, whether or not they were traditional owners.

"For this reason, cultural heritage matters are typically decided by those people with cultural authority, not the membership as a whole," she said.

"However, LACLs are democratic organisations and members are free to raise any concerns that they may have at meetings or to the board."

Cultural significance disputed

The new application highlights disputes playing out between the region's Aboriginal groups, including disagreements over who holds positions of cultural authority and who has the right to speak for country.

In 2019, before the mine was initially approved, OLALC made a submission in response to the McPhillamys Gold Project environmental impact statement.

It objected to the State Significant Development on the basis that "the proposed project will detrimentally and irreversibly impact the Aboriginal cultural heritage significance of the study area".

In 2023 OLALC changed its position on the mine from "object" to "neutral".

It has publicly questioned the accuracy and veracity of claims made about the area, including a Dreaming story.

The new the section 9 application raises concerns that "Wiradjuri and other First Nations people with cultural connections and responsibilities to this country, were not given a meaningful opportunity to have our say".

"We were not consulted or asked for our views when the change in stance by the executive of the Orange Aboriginal Land Council was announced previously," it said.

In her statement of reasons for granting the protection order in 2024, Ms Plibersek found that development of the mine's tailings dam would cause "irreversible" and "permanent" loss to Aboriginal heritage.

She found the Belubula headwaters were sacred to the Wiradjuri people and their Blue Banded Bee Dreaming Tradition, which narrates how the springs were formed.

In his federal court judgement delivered in October, Justice James Stellios referenced a brief from DCCEEW that said the declaration was contrary to submissions and advice from OLALC.

The department concluded that "a consensus view amongst all Wiradjuri people is not necessary".

But it was the timing of the revelation about the Dreaming story that would ultimately unravel the legality of Ms Plibersek's declaration.

Justice Stellios's judgement said his decision to overturn the Commonwealth's section 10 was not "about the merits of the claim … whether it's a significant area or under threat of injury or desecration".

He found that "the decision-making process was fundamentally flawed because of the failure to treat the revelation of the Blue Banded Bee Dreaming story as a new application".

During the court case, Regis Resources argued that the Dreaming story did not exist and challenged why it was not raised in the initial protection order application.

In a statement provided to the ABC, Regis Resources said the project had been approved through both the NSW State Significant Development pathway and the federal Environment Protection and Biodiversity Conservation Act, "each of which considered Aboriginal cultural heritage matters".

The company said it "supports the protection of Aboriginal cultural heritage, through a planning process that provides certainty for all parties".

The ABC understands that a second section 9 application has also been lodged by a different group.