Judge finds Aboriginal protection order on goldmine 'fundamentally flawed'

The Federal Court has found a fundamentally flawed decision-making process led to the granting of an Aboriginal protection order over part of a billion-dollar New South Wales goldmine project.

Justice James Stellios has published his redacted reasons for overturning an Aboriginal protection order applied to part of the McPhillamys goldmine site near Blayney.

Former environment minister Tanya Plibersek made the declaration under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act in August 2024.

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.

The then-minister's decision was based on the blue-banded bee Dreaming story shared by Wiradjuri elders.

In his reasons, 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".

Timing of new information

Justice Stellios's judgment does not centre on the merits of the protection applications, but rather the nature of certain information and the time it was received by the federal Department of Climate Change, Energy, the Environment and Water (DCCEEW).

When an application for Aboriginal protection is made, a government reporter or staff member is assigned to issue public notifications, consult interested individuals and organisations, assess the application and provide a report with recommendations to the minister.

The McPhillamys Gold Project received state and federal approval in March and May 2023, respectively.

Aboriginal elders provided details of the blue-banded bee Dreaming story in December 2023.

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.

The judgment noted that the details of the blue-banded bee Dreaming story provided greater clarity about 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".

Justice Stellios also noted that the Dreaming story was shared after the Section-10 report had been presented to the minister.

"While it was stated that the Minister considered the s 10 report, it should be evident at this stage that the revelation of the Blue Banded Bee Dreaming story occurred after that report was provided to the Minister," Justice Stellios's reasons said.

He concluded that the legally mandated government reporter process, which included public consultation, should have started "afresh".

"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, or that there was an adequate public ventilation of the particular significance of the application area or the threat posed to it," Justice Stellios's reasons stated.

The judgment noted that the DCCEEW considered the Dreaming story a "subset" of information already provided and that it did not warrant a new application.

Justice Stellios disagreed.

"The [government] reporter was denied the opportunity to consider representations on the particular significance of the application area and the Minister was, thereby, denied the opportunity to consider the reporter's report on that central and material matter," his reasons said.

He noted that while recommencing the public consultation process would have led to additional costs and further delays, the minister could have nominated the same government reporter to consider the fresh application.

Justice Stellios ended by saying he was aware that his decision would mean a "further protracted" process for the application, which would now be referred back to the federal government for redetermination.

In a statement, a federal government spokesperson said the Albanese government remained committed to reforming the relevant legislation to "deliver more clarity and certainty to everyone involved".

Consultation on proposed legislative reforms is due to start before the end of the year.