Olympians strike gold while NSW mining strikes out: McPhillamys Gold Project and Bowdens Silver

In a cruel twist of irony, two of NSW’s premier minerals projects, approved by the NSW Government within just days of one another, have been nullified on the same day through two separate decisions.

McPhillamys Gold section 10 declaration

The McPhillamys Gold Project in Kings Plains, Blayney, was approved as State Significant Development (SSD) by the Independent Planning Commission (IPC) on 30 March 2023, and proposed to extract up to 60 million tonnes of ore and produce 2 million ounces of gold. The Aboriginal and Historical Cultural Assessment prepared as part of the environmental impact statement (EIS) for the project concluded that the Aboriginal cultural heritage sites that would be impacted by the activity are not of high scientific or cultural significance.

The project area is comprised of cleared freehold land wholly owned by McPhillamys Gold Project and has historically been used for agriculture. During the state assessment process, consultation was undertaken with the Orange Local Aboriginal Land Council under section 52(4) of the Aboriginal Land Rights Act 1983 (NSW), and the project was also assessed and approved under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in May 2023.

In October 2020, the Environmental Defenders Office filed an application on behalf of Mrs Nyree Reynolds, a Wiradyuri elder, under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act), seeking a declaration of protection for the entire project area, but with a focus on the area proposed as a tailings dam for the McPhillamys Gold Project due to matters of significance including spiritual connection to the Belubula River and its headwaters.

An application can be made by an Aboriginal and Torres Strait Islander person or a representative for the protection of a specified area or object of significance under sections 9, 10, 12 and 18 of the ATSIHP Act. The Minister for the Environment and Water (Minister) must appoint a person to provide a report on the application who is to seek representations from interested parties about the application and present any information received in a report to the Minister. The report may be shared with affected parties. The Minister is required to make decisions in line with ‘procedural fairness’, i.e. that any person who might be affected by a decision is given a reasonable opportunity to comment on the information on which a decision will be based.

On 16 August 2024, Tanya Plibersek as Minister, made a declaration under section 10 of the ATSIHP Act that part of the Belubula River, its headwaters and its springs at Kings Plains is a declared area, to which a person must not engage in any conduct that will, or is likely to, injure or desecrate the declared area. This includes a prohibition on:

• undertaking any mining activities within the declared area; or
• constructing any bulk earthworks on the declared area; or
• sealing any part of the declared area, including with concrete; or
• undertaking any activity that will, or is likely to, significantly alter the landform or course of water flowing within the declared area; or
• conducting any drilling activities or preliminary activities associated with drilling; or
• conducting any clearing activities or preliminary activities associated with clearing; or
• disturbing native vegetation or soil in a way that will, or is likely to, damage the declared area.

Regis Resources, the project proponent, has requested a formal statement of reasons in relation to the declaration, however has said that the decision will mean the project is no longer financially viable, as it would take five to 10 years to develop plans and seek an alternative tailings dam site. The project was worth $200 million in royalties to the state and was estimated to generate 580 construction roles.

There are no rights of merit review or appeal under the ATSIHP Act itself, however there are a number of provisions concerning requirements to be met by the Minister that may be subject to judicial review, and for which proceedings have been brought previously in relation to other projects. If Regis chooses not to lodge a judicial review application, or is unsuccessful in such an application, it will need to seek a modification of the existing SSD consent or a new SSD consent for a new tailings dam site. A variation to the existing EPBC Act approval or a new referral may also be required.

Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205

The Bowdens Silver project near Mudgee was approved as SSD by the IPC on 3 April 2023 and proposed to process more than 30 tonnes of silver, lead and zinc over 23 years. The transmission line required for the purpose of providing electricity to the mine was not included in the SSD application and accompanying EIS for the project, and the IPC granted consent on the basis that the line would be considered as part of a later assessment.

The Bingman Catchment Landcare Group Incorporated sought judicial review of the IPC’s decision on the basis that it had failed to consider the environmental impacts of the transmission line under section 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). In the first instance, the Land and Environment Court held that the transmission line was not part of a single proposed development with the mine within the meaning of section 4.38 of the EP&A Act and did not require consideration in the assessment of the SSD application for the project. Further, Justice Duggan determined that given the route for the transmission line had not been determined, the IPC could not assess the potential impacts of construction and therefore did not need to take the likely impacts into account under section 4.15 of the EP&A Act. The Bingman Catchment Landcare Group subsequently appealed that decision.

On 16 August 2024, the Court of Appeal determined that the transmission line formed part of a ‘single proposed development’ with the mine itself and therefore SSD consent was required for the transmission line. Whether part of the mine SSD application, or the subject of a separate SSD application, the IPC was required to consider the likely impacts of the transmission line in assessing the mine SSD application. Part 5 of the EP&A Act in respect of activities carried out by or on behalf of a public authority, nor the exempt development pathway were available to the applicant for approval of the line given it formed part of a single proposed development that is SSD under section 4.38(4) of the EP&A Act. The Court of Appeal determined that as the transmission line is part of a single proposed development with the mine, the IPC will need to consider the impacts of the infrastructure when assessing the SSD application for the mine, pursuant to section 4.15(1)(b) of the EP&A Act.

Justice Price, dissenting, considered that the project proponent was not prevented from making its SSD application regarding the transmission line, and that the existing mine SSD consent should be suspended while that occurred, rather than being declared null and void. Nonetheless, the Court of Appeal declared that the development consent was void and had no effect, and that the project proponent is restrained from carrying out any work in reliance on that consent.

Silver Mines Limited, the project proponent, has said that it will prepare and submit a new SSD application for the project. The project is expected to create over 320 construction roles and over 220 operational roles.

Impact

These challenges will have a significant impact on the mining industry in NSW, and present a material risk for the NSW Government in delivering its Critical Minerals Strategy. The implications for the broader industry may also include a hesitancy to invest or develop projects in NSW due to these approvals risks.

The section 10 declaration in respect of the McPhillamys Gold Project was made almost 4 years after the application was first made, with the project having obtained environmental and planning approvals under both the State and Federal government regimes (including an assessment of Aboriginal Cultural Heritage).

In respect of the Bowdens Silver decision, future projects will need to include infrastructure as part of the mine SSD application or a separate SSD application, but in any event the impacts of the infrastructure must be considered as part of the assessment and determination of the mine SSD application, as a ‘likely impact’ of a single proposed development.

Our Environment & Planning team is able to assist on any queries or advice about these decisions and their impact. For any questions or comments on this article, please contact Samantha Daily, Julia Green and Heather Pym.