Federal Court Voids Plibersek Protection Order on McPhillamys Gold Mine
The Federal Court has invalidated a section 10 declaration made by former environment minister Tanya Plibersek that prevented Regis Resources from building a tailings dam for its McPhillamys gold project at Blayney.
Justice James Stellios ruled the declaration was invalid, upholding Regis Resources' challenge to the 2024 order made under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act The Guardian. The order had blocked construction of the tailings storage facility in the headwaters of the Belubula River.
The application for protection came from the Wiradyuri Traditional Owners Central West Aboriginal Corporation. It sought coverage for the headwaters and springs of the Belubula River as a site central to creation stories. The declaration gave effect to that request in the footprint proposed for mine waste infrastructure.
Regis argued the order would make the McPhillamys development unviable. The project sits near Bathurst in the NSW Central West and was valued at $1 billion AFR. The specific constraint was locational. Without the dam site, the mine plan as designed could not proceed.
The decisional history was not linear. The federal government initially rejected the protection request for the McPhillamys area but reversed that position in September 2024 NIT. Plibersek herself had noted that the significance of the site was disputed. Regis subsequently claimed the government had not followed proper process in making the Aboriginal heritage protection order.
The broader context here is the operation of section 10 itself. The provision gives the minister a protective power exercisable on heritage grounds, but subject to procedural fairness and jurisdictional limits. Judicial review does not substitute the Court's assessment of cultural significance for the minister's. It tests legality. A finding of invalidity turns on how the power was exercised, not whether the underlying heritage claim has merit.
Looking at what this means for practitioners, the distinction matters. Invalidity removes the legal barrier. It does not resolve the factual contest over significance. It does not approve the dam. The corporation's claim remains on the record. The company's viability assessment remains contested. Future decision-making will need to address the procedural defect identified by the Court while engaging with the same geographical pinch point, headwaters sought to be protected and selected for tailings.
In my view, the judgment clarifies little about the substantive heritage dispute and much about process risk in concurrent approvals. Resource proponents working under state planning consents alongside Commonwealth heritage powers face parallel tracks. A defect on one track can stall the whole project. Ministers invoking last-resort heritage powers carry a heightened obligation to insulate the record from review error, particularly where significance is acknowledged to be disputed and commercial consequences are direct.
