Staff Writer | October 4, 2024 |
Resolution copper project in Arizona.
(Image courtesy of Rio Tinto via Flickr.)
The San Carlos Apache Tribe is taking its longstanding fight against the Resolution Copper project to the US Supreme Court after the Arizona state court ruled in favour of the Rio Tinto-BHP joint venture.
This week, the Tribe asked the US Supreme Court to review an earlier decision by the Arizona Supreme Court to allow Resolution to discharge copper and other contaminants into Queen Creek. The project currently sits on federally owned Oak Flat Campground, a place the Apache consider home to deities.
The argument centers on whether the Resolution’s plan to construct what would be one of the largest copper mines in the world constitutes a “new source of pollution” under the Clean Water Act, or an “existing source.”
A “new source” determination would impose the most stringent Clean Water Act regulations on the proposed copper mine, and Resolution would need to prove to the Arizona Department of Environmental Quality (ADEQ) that Queen Creek could return to compliance with clean water standards even with additional discharges.
An “existing source” determination, however, would allow Resolution to discharge copper-contaminated water into Queen Creek without meeting the strongest protections under the Clean Water Act.
The ADEQ had previously treated Resolution as an “existing source”, and this was later affirmed by the Maricopa County Superior Court.
The Apache Tribe subsequently fought and won its case with the Arizona Court of Appeals in 2022.
However, the Arizona Supreme Court’s June 2024 decision sided with the ADEQ determination, giving Resolution a major win in its quest to mine the some 40 billion pounds of copper metal. The ruling, according to the court, was based Resolution’s plans to reuse a small number of tunnels and mineshafts that the Magma Copper Company constructed for a defunct mine that was exhausted in 1996.
In its statement, the Apache Tribe said the Arizona Supreme Court made “an egregious error” when it ruled that Resolution Copper could avoid meeting the most rigorous Clean Water Act regulations.
“It’s absurd to consider Resolution an existing source when most of Resolution’s mining operations have yet to be built and the copper lode is a mile underground and has never been mined,” Terry Rambler, the Tribe’s chairman, said.
“The Arizona Supreme Court twisted itself in knots to pretend Resolution’s mostly unbuilt mining operations somehow already exist,” he added.
In an emailed statement to Mining.com, a Resolution Copper spokesperson said this case does not present any question that merits US Supreme Court review. “In its unanimous decision, the Arizona Supreme Court engaged in a thorough and straightforward construction and application of the relevant regulation to reach the correct result, and we expect that ruling will stand,” the statement reads.
Meanwhile, in a separate petition, non-profit group Apache Stronghold is also asking the US Supreme Court to prevent the transfer of Oak Flat to Resolution, arguing that the Religious Freedom Restoration Act protects their right to worship at the sacred site.
The Resolution Copper project has faced numerous setbacks for years due to fierce opposition by the Apache Tribe. Once built, it would supply more than a quarter of America’s copper demand for decades.
Rio Tinto’ CEO recently said in a Bloomberg interview that the company is targeting first production by the end of this decade.
The San Carlos Apache Tribe is taking its longstanding fight against the Resolution Copper project to the US Supreme Court after the Arizona state court ruled in favour of the Rio Tinto-BHP joint venture.
This week, the Tribe asked the US Supreme Court to review an earlier decision by the Arizona Supreme Court to allow Resolution to discharge copper and other contaminants into Queen Creek. The project currently sits on federally owned Oak Flat Campground, a place the Apache consider home to deities.
The argument centers on whether the Resolution’s plan to construct what would be one of the largest copper mines in the world constitutes a “new source of pollution” under the Clean Water Act, or an “existing source.”
A “new source” determination would impose the most stringent Clean Water Act regulations on the proposed copper mine, and Resolution would need to prove to the Arizona Department of Environmental Quality (ADEQ) that Queen Creek could return to compliance with clean water standards even with additional discharges.
An “existing source” determination, however, would allow Resolution to discharge copper-contaminated water into Queen Creek without meeting the strongest protections under the Clean Water Act.
The ADEQ had previously treated Resolution as an “existing source”, and this was later affirmed by the Maricopa County Superior Court.
The Apache Tribe subsequently fought and won its case with the Arizona Court of Appeals in 2022.
However, the Arizona Supreme Court’s June 2024 decision sided with the ADEQ determination, giving Resolution a major win in its quest to mine the some 40 billion pounds of copper metal. The ruling, according to the court, was based Resolution’s plans to reuse a small number of tunnels and mineshafts that the Magma Copper Company constructed for a defunct mine that was exhausted in 1996.
In its statement, the Apache Tribe said the Arizona Supreme Court made “an egregious error” when it ruled that Resolution Copper could avoid meeting the most rigorous Clean Water Act regulations.
“It’s absurd to consider Resolution an existing source when most of Resolution’s mining operations have yet to be built and the copper lode is a mile underground and has never been mined,” Terry Rambler, the Tribe’s chairman, said.
“The Arizona Supreme Court twisted itself in knots to pretend Resolution’s mostly unbuilt mining operations somehow already exist,” he added.
In an emailed statement to Mining.com, a Resolution Copper spokesperson said this case does not present any question that merits US Supreme Court review. “In its unanimous decision, the Arizona Supreme Court engaged in a thorough and straightforward construction and application of the relevant regulation to reach the correct result, and we expect that ruling will stand,” the statement reads.
Meanwhile, in a separate petition, non-profit group Apache Stronghold is also asking the US Supreme Court to prevent the transfer of Oak Flat to Resolution, arguing that the Religious Freedom Restoration Act protects their right to worship at the sacred site.
The Resolution Copper project has faced numerous setbacks for years due to fierce opposition by the Apache Tribe. Once built, it would supply more than a quarter of America’s copper demand for decades.
Rio Tinto’ CEO recently said in a Bloomberg interview that the company is targeting first production by the end of this decade.
Australian mine fight reignites Aboriginal heritage tensions
Reuters | October 1, 2024 |
(Image courtesy of Puutu Kunti Kurrama and Pinikura Aboriginal Corporation.)
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 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 legally destroyed ancient Aboriginal rock shelters at Juukan Gorge four years ago and raises the urgency to overhaul heritage protection laws.
Industry warns sovereign risk in Australia is rising
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, authorized 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, majority owned by mining giant Rio Tinto, 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 finalize 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 plan to dig under a desert lake and Woodside’s 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.
Regis Resources takes $130m writedown as gov’t call makes project unviable
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 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)
(By Melanie Burton; Editing by Sonali Paul)
Reuters | October 1, 2024 |
(Image courtesy of Puutu Kunti Kurrama and Pinikura Aboriginal Corporation.)
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 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 legally destroyed ancient Aboriginal rock shelters at Juukan Gorge four years ago and raises the urgency to overhaul heritage protection laws.
Industry warns sovereign risk in Australia is rising
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, authorized 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, majority owned by mining giant Rio Tinto, 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 finalize 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 plan to dig under a desert lake and Woodside’s 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.
Regis Resources takes $130m writedown as gov’t call makes project unviable
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 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)
(By Melanie Burton; Editing by Sonali Paul)
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