Blayney Shire Council confused whether Tanya Plibersek’s Section 10 call to stop mine dam cuts local road

A NSW council says it was blindsided by Environment Minister Tanya Plibersek and her office when its land was caught in her contentious decision to reject a tailings dam at Regis McPhillamys’ proposed goldmine on Indigenous heritage grounds.

Ms Plibersek opted to override the Federal environment department and NSW planning approvals and deny the proposal to build a mine outside Orange, four years after a Wiraduryi elder submitted a Section 10 application to the department over concerns the project would destroy songlines.

That decision saw portions of a dirt road in the neighbouring Blayney Shire fall into the Section 10 decision, which raised concerns among the council about whether it had, technically, become untouchable (and undrivable) to the public.

Blayney Shire Council told The Daily Telegraph it was seeking advice on whether upgrades can be made to Dungeon Road at Kings Plains — or if the public can even continue to drive on the track — after portions were deemed to be of significant Indigenous heritage.

The council said its road was an unwitting victim in Ms Plibersek’s ruling to uphold an application against the construction of a tailings dam at Regis McPhillamy’s proposed goldmine under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

The developer Regis Resources had planned to build the dam at the headwaters of the nearby Belubula River which, in an application to the minister, the Wiradyuri Traditional Owners Central West Aboriginal Corporation said were particularly significant for Wiradjuri/Wiradyuri people and linked to ongoing cultural practices of the area.

Ms Plibersek approved their application to protect the area, but said it would not “stop the mine”. The company must find an alternative location for the dam — a crucial part of a mine that stores leftover materials from ore processing — before going through the process again.

Section 10 attempts to prevent areas of Indigenous heritage from being “injured or desecrated” by its use. The Act states an area will be deemed as such “if passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition.

The Act also states a person must not “seal any part of the declared area, including with concrete”. Anyone found to be contravening the act would be committing an offence.

Blayney Shire Council general manager Mark Dicker told The Daily Telegraph it was looking for more guidance over the “ambiguous” language of Section 10. He said it implied that Dungeon Road could not be touched for maintenance or public use.

“If you read the declaration, it’s so ambiguous. We need an opinion because (the Act implies) we can’t do drainage works, can’t seal the road, we can’t use the road,” Mr Dicker told the tabloid.

“We need to ascertain if the road can continue to be used.”

The council said Ms Plibersek was unaware the declaration impacted the public road and that it had not been contacted by a representative on the matter.

But a spokesperson from Ms Plibersek’s office refuted these claims when approached by The Nightly to comment

“The use and maintenance of the road is unaffected (by Section 10),” a spokesperson said.

As it stands, Section 10 will only apply to the tailings dam, and Dungeons Road can continue to be used for sheep grazing and as a thoroughfare for the region.

“Council were invited to make a submission during the Section 10 process, (but) they did not do so,” the spokesperson added.

It is understood because Blayney Shire Council did not participate in discussions about Section 10 as other stakeholders did and it was not involved in any procedural fairness rounds.

Blayney Shire Council has been contacted for comment.