Lawyers defend Tanya Plibersek's part protection of McPhillamys mine site from development

The Federal Court has heard a First Nations elder's disclosure of a "sensitive" Dreaming story was a "very difficult process" that resulted in a gold mine being halted.

Tiffany Wong SC today defended the former federal environment minister Tanya Plibersek's decision to protect part of Regis Resources' billion-dollar gold project in the NSW Central West from development.

Ms Plibersek found the Belubula River's headwaters and springs were culturally significant and under threat from plans to turn the site into a tailings dam.

The declaration was made in August 2024, more than a year after the McPhillamys Gold Project was approved.

Regis Resources is challenging the protection order in the Federal Court in Sydney.

Ms Wong told the court the spiritual connection between the Wiradyuri people and the Belubula waterways was a "sensitive matter."

"The persons who disclosed the Blue Banded Bee Dreaming felt that it was a very difficult process," she said.

Ms Wong read out the transcript of Wiradyuri elder Uncle Bill Allen who gave oral evidence about the Dreaming for the protection order application.

"'We've all had to sit here and talk about things … that should only be spoken about on Country,'" she read.

She told the court that other elders from the Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC) said it was an "emotional rollercoaster" for them to disclose particular Dreaming stories and put them in a "real predicament."

The barrister representing the gold company, Perry Herzfeld SC, previously questioned why elders raised the Blue Banded Bee Dreaming story almost two years after a protection application was originally made.

Ms Wong said it was "apparent" the elders were grappling with disclosing the culturally sensitive information that had been passed down from a senior knowledge holder.

"They're matters of custom, tradition, dates, things happening … at particular times," she said.

Reliance on public art 'reasonable'

On Wednesday Mr Herzfeld criticised the environment department using a public mural about the Blue Banded Bee Dreaming as further evidence for its existence.

Ms Wong told the court the artwork about the story was painted about two years before the first disclosure of the Dreaming in the protection application process.

She said the Wiradyuri traditional owners had passed down the Dreaming story to the artist.

"That was a story that was accepted by more than one person as being a Wiradyuri story," Ms Wong said.

"We don't see why that's unreasonable [to accept]."

She drew on previous cases to argue cultural knowledge and traditions can be held by one or a small number of people due to the history of dispossession.

Minister 'considered' impact to mine

Ms Wong disputed the mine's view that her client did not properly consider how the declaration could financially impact the project.

The gold company stipulated that Ms Plibersek assumed it could "quickly" pursue another tailings dam location.

Ms Wong took the court through comments the former minister made to the media following the decision, which suggested Regis Resources could find another spot for the facility.

"[The minister said] it doesn't mean the mine can't go ahead if they spend some time thinking of an alternative location," Ms Wong said.

She also gave evidence that Ms Plibersek initiated the final round of procedural fairness in the decision making process which was focused on the financial impacts to Regis Resources if the declaration was made.

Department 'bent itself over' to be fair

Ms Wong outlined that her client rejected the mining company's view it was denied procedural fairness.

Regis Resources previously argued it was not given the opportunity to comment adequately on the late emergence of the Blue Banded Bee Dreaming story.

Ms Wong told the court the environment department conducted seven procedural fairness rounds after the section 10 report recommended the site not be protected.

She said they consisted of new information being distributed to interested parties to have their say — which included the Dreaming story.

"They performed the function of making sure that responses were solicited, and information provided which would assist the minister to make a fair decision."

The hearing will continue on Friday.