A Dreaming Story Arrived After the Report. That Is Why the McPhillamys Ban Fell
Justice Stellios's published reasons show the Section 10 declaration that stalled Regis Resources' $1.3 billion gold project failed on process: information about the Blue Banded Bee Dreaming story reached the department after the statutory report and was treated as a footnote when the law required a new application and fresh public consultation.
The Federal Court has published its reasons for setting aside the Aboriginal heritage declaration that halted part of the McPhillamys Gold Project near Blayney in central western New South Wales. In LFB Resources NL v Minister for the Environment and Water (No 3) [2026] FCA 1504, Justice James Stellios found that the declaration made by then minister Tanya Plibersek in August 2024 under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act was "without authority", and sent the application back to the current minister, Murray Watt, for redetermination. The orders were made on 14 October and the redacted reasons released on Friday 16 October. Written submissions on costs are due by 27 October.
The sequence matters. The NSW Independent Planning Commission approved the mine in March 2023 and the Commonwealth followed in May 2023. In December 2023, after the government-appointed reporter had already delivered the Section 10 report to the minister, Wiradyuri elders provided details of the Blue Banded Bee Dreaming story and one elder asked that it be used to support the application. The department treated the story as a "subset" of material already submitted. Justice Stellios disagreed: the information gave the area a specific significance the earlier material had described only vaguely, so "the provision to the minister's department of information about the blue-banded bee Dreaming story constituted, in substance, a new application". That required a reporter to be appointed, public notice to be given and consultation to run again. None of that happened, so the precondition in Section 10(1)(c) was not met.
The $1.3 billion question now sits with Watt, who said the judgment went to process rather than merits.
From the analysisThe judge was careful about what he was and was not deciding. "The court's decision that the declaration is invalid is the sole consequence of a material deficiency in the process for making the declaration," he wrote, adding that his reasons "say nothing about the merits of the claims that the declaration area is a significant Aboriginal area, or that it is under threat of injury or desecration". He acknowledged that restarting consultation would have cost time and money, noted the minister could have reappointed the same reporter, and accepted that his decision means a "further protracted" process. The reporter, he said, "was deprived of the chance to evaluate representations regarding the specific importance of the application area, which in turn denied the Minister the opportunity to consider the reporter's insights on this critical matter".
For Regis the practical effect is narrower than the headlines. The declaration covered 400 hectares including the approved tailings dam site at the headwaters of the Belubula River. After it was made the company withdrew its feasibility study and took a $192 million impairment, saying an alternative tailings site could take up to a decade to approve. It has since designed an integrated waste landform that avoids the declared area entirely, and told the ASX on 14 October that it welcomes the judgment, expects Watt to redetermine the application, and is targeting a final investment decision in the first half of 2028. A government spokesperson told the ABC the Albanese government remains committed to revising the Act to give "more clarity and certainty to all stakeholders", with discussions on legislative change to begin before the end of the year.
We think the lesson is about sequencing. Section 10 is a power to stop an approved project after the state and federal planning systems have said yes, and that is defensible only if the process that triggers it is open. Here the decisive information arrived after public consultation had closed, the proponent and the public never got to answer it, and the minister decided on a report that had not considered it. A heritage regime that lets late evidence in without reopening the file will keep producing declarations that fall in court, which serves neither the elders who brought the story nor the investors who need to know whether an approval is an approval. The fix is a statutory rule that new material restarts the clock, with a fixed timetable so that restart does not mean a decade.
The $1.3 billion question now sits with Watt, who said the judgment went to process rather than merits. He can reappoint a reporter, run the consultation Justice Stellios said was missing, and decide the application again, with the company already building its plans around a design that does not need the disputed ground. Costs submissions close on 27 October. The Act's redraft, promised before year end, will show whether Canberra has read the judgment as a procedural accident or as a design flaw.
The Semaform
Justice James Stellios published reasons on 16 October explaining why the Federal Court set aside the Section 10 heritage declaration over part of Regis Resources' McPhillamys gold project: the Blue Banded Bee Dreaming story, provided after the statutory report, was in substance a new application that required fresh consultation.
A late-arriving claim that reopens nothing will keep producing declarations that fail in court. The Act needs a rule that new material restarts the reporter process on a fixed timetable, so approvals mean something and heritage claims are tested in the open.
Wiradyuri elders and heritage advocates say the significance of the Belubula headwaters is real and the ruling turns on paperwork; mining groups say the case shows Section 10 is being used to override completed state and federal approvals.
Sources
- Federal Court of Australia, LFB Resources NL v Minister for the Environment and Water (No 3) [2026] FCA 1504, reasons published 16 October 2026
- Regis Resources, ASX announcement: Federal Court Rules McPhillamys Section 10 Declaration Invalid, 14 October 2026
- ABC News, Judge cites fundamental flaws in bid for Aboriginal protection over McPhillamys goldmine site, 19 October 2026
- ABC News, Federal Court declares Commonwealth's blocking of NSW goldmine 'invalid', 14 October 2026
- Mining.com.au, Court overturns order blocking Regis Resources' $1.3 billion gold project, 14 October 2026
- Australian Resources and Investment, Regis victory restores investment confidence, but risks remain, 16 October 2026
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