Court overturns Aboriginal heritage order on NSW goldmine, finds process 'fundamentally flawed'

Judge rules late revelation of Wiradjuri Dreaming story should have triggered a fresh application under federal heritage law

By LineZotpaper

Published19 October 2026

Read Time3 min

Sources2 outlets

The Federal Court has overturned an Aboriginal protection order covering part of the billion-dollar McPhillamys goldmine project near Blayney in New South Wales, ruling the decision-making process behind it was 'fundamentally flawed.' Justice James Stellios found that when Wiradjuri elders revealed the blue-banded bee Dreaming story in December 2023, officials should have treated it as a new application rather than extra detail, meaning the public never had an adequate chance to respond to the specific claim for protection.

The Federal Court has set aside an Aboriginal protection order covering part of the billion-dollar McPhillamys goldmine project near Blayney in New South Wales, after finding the decision-making process that produced it was "fundamentally flawed."

Justice James Stellios published redacted reasons overturning the order, which former environment minister Tanya Plibersek granted in August 2024 under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act. The declaration protected the headwaters and springs of the Belubula River, where the mine's tailings dam was to be built.

The ruling does not turn on the merits of the protection claim. Instead, Justice Stellios found the federal Department of Climate Change, Energy, the Environment and Water should have advised the minister that a request to use the blue-banded bee Dreaming story in support of a Section 10 application amounted to a new application requiring a fresh assessment.

The judge noted the Dreaming story, shared by Wiradjuri elders in December 2023, was revealed only after the government reporter's report had been presented to the minister, and that it described the significance of the area far more specifically than earlier material, which had been "identified at a high level of generality and in an unparticularised way." The department had treated the story as a "subset" of information already in hand.

"In my view, it could not be said that the public were given an effective opportunity to address the more specific and particular claim for protection," Justice Stellios wrote. He said the legally mandated consultation process should have started "afresh," even though recommencing it would bring additional costs and delays.

The McPhillamys project received state and federal approval in March and May 2023. Mine operator Regis Resources contested the validity of the protection order in the Federal Court.

The application will now be referred back to the federal government for redetermination. A government spokesperson said the Albanese government remained committed to reforming the legislation "to deliver more clarity and certainty to everyone involved," with consultation on proposed reforms due to begin before the end of the year.

Analysis

Why This Matters

The heritage application now returns to the federal government, leaving both the protection of the Belubula River headwaters and the future of the mine's planned tailings dam unresolved.
The judgment shows that procedural failings alone can undo a protection order, regardless of the strength of the cultural claims behind it.
Planned changes to the heritage protection legislation may determine how similar claims are handled in future.

Background

The Aboriginal and Torres Strait Islander Heritage Protection Act allows the federal environment minister to make declarations protecting areas of significance to Indigenous Australians. Under a Section 10 application, a government reporter issues public notifications, consults interested parties and provides a report with recommendations to the minister. This case centred on whether sacred knowledge that arrived after that report was completed should have triggered a new and complete assessment.

Key Perspectives

The federal government: A spokesperson said the Albanese government remained committed to legislative reform "to deliver more clarity and certainty to everyone involved," with consultation due to start before the end of the year. Mine operator Regis Resources: Regis contested the validity of the protection order in the Federal Court and succeeded on procedural grounds, though the ruling does not decide the merits of the heritage claims. The federal department: DCCEEW considered the blue-banded bee Dreaming story a "subset" of material already provided, and so did not regard a new application as necessary. Critics of the original process: Justice Stellios found the public was never given an effective opportunity to address the more specific claim, and that the minister was denied a reporter's report on that central matter. He also acknowledged his decision means a "further protracted" process for the application.

What to Watch

How the federal government handles the application now it has been referred back, including whether a fresh public consultation process begins.
The legislative reform consultation due to start before the end of the year, which may change how Section 10 claims are assessed.
The fate of the McPhillamys goldmine's planned tailings dam at the Belubula River headwaters while the heritage claim is unresolved.

Sources

Judge finds Aboriginal protection order on goldmine 'fundamentally flawed' · Just In
Judge finds Aboriginal protection order on goldmine 'fundamentally flawed' · Latest business news

Checked

12 claims in this story checked against 1 source: 11 supported.

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SupportedJustice James Stellios found the decision-making process was “fundamentally flawed.”Just In: “Justice Stellios concluded "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".”
SupportedJustice Stellios wrote that the public lacked an effective opportunity to address the specific protection claim.Just In: “"In my view, it could not be said that the public were given an effective opportunity to address the more specific and particular claim for protection”
SupportedThe judge said the area's significance had previously been identified “at a high level of generality and in an unparticularised way.”Just In: “the particular significance of the area in question, which until then had been "identified at a high level of generality and in an unparticularised way".”
SupportedThe Federal Court overturned an Aboriginal protection order covering part of the McPhillamys goldmine project.Just In: “Justice James Stellios has published his redacted reasons for overturning an Aboriginal protection order applied to part of the McPhillamys goldmine site near Blayney.”
SupportedMcPhillamys is a billion-dollar New South Wales goldmine project near Blayney.Just In: “an Aboriginal protection order over part of a billion-dollar New South Wales goldmine project.”
SupportedWiradjuri elders provided the blue-banded bee Dreaming story in December 2023, after the Section 10 report had reached the minister.Just In: “Aboriginal elders provided details of the blue-banded bee Dreaming story in December 2023.”
SupportedJustice Stellios found the request to use the Dreaming story required a new Section 10 application and a fresh process.Just In: “One of them asked for the story to be used to support a Section 10 application, and Justice Stellios noted the DCCEEW should have advised the minister that this request meant a new Section 10 application was required.”
SupportedFormer environment minister Tanya Plibersek made the declaration under Section 10 in August 2024.Just In: “Former environment minister Tanya Plibersek made the declaration under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act in August 2024.”
SupportedThe declaration protected the Belubula River headwaters and springs where the mine's tailings dam was to be built.Just In: “It was granted to protect the headwaters and springs of the Belubula River, which is where the mine's tailings dam was to be built.”
SupportedThe project received state approval in March 2023 and federal approval in May 2023.Just In: “The McPhillamys Gold Project received state and federal approval in March and May 2023, respectively.”
Not in the sourcesRegis Resources was the mine operator.
SupportedThe application will be referred back to the federal government for redetermination.Just In: “the application, which would now be referred back to the federal government for redetermination.”