Court hears Dreaming story not 'trump card' to halt Regis Resources' McPhillamys Gold Project
Looking out at the proposed site of the tailings dam, which is subject to the Aboriginal protection order. (ABC News: Lani Oataway)
In short:
An elders' group has told a court it was not keeping a Dreaming story "up its sleeve" three years after a protection bid was lodged over the site of a proposed mine.
Regis Resources is challenging the former environment minister's decision to protect part of its McPhillamys Gold Project from development.
What's next?
Justice James Stellios has reserved his judgement and will hand it down at a later date.
An elders' group has told a Federal Court in Sydney it did not keep a Dreaming story "as a trump card" which ultimately led to a gold project being halted.
Regis Resources is seeking to quash a protection order made over part of its proposed McPhillamys mine near Blayney in the NSW Central West.
The former federal environment minister Tanya Plibersek granted the protection bid over the Belubula River and its headwaters in August last year.
The McPhillamys Gold Project was approved by the state and federal governments in 2023. (ABC News: Lani Oataway)
Wiradyuri elder Aunty Nyree Reynolds lodged the application under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act in late 2020.
After an investigation, a report recommended against protecting the area because there was not enough evidence of cultural significance.
Ms Reynolds and the Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC) then lodged an emergency bid under section 9 of the same Act in November 2023.
The barrister representing WTOCWAC, Tim Goodwin, said section 9 dealt with "serious and immediate threats" and his client filed the application because drilling was taking place in the area.
The mine is proposed to be built near the Central West town of Blayney. (ABC News: Lani Oataway)
He said Wiradyuri elders then gave evidence of several Dreaming stories, including the Blue Banded Bee narrative, at a meeting in early December that year.
The mining company argued earlier this week that the Blue Banded Bee Dreaming was "critical" to the Commonwealth's decision to protect the area.
Perry Herzfeld SC, who represented Regis Resources, told the court today the Commonwealth was "unquestioning" as to why the story was raised "at the last minute."
But Mr Goodwin said the story was particularly sensitive and given "under duress" because of the immediate threat to the site.
"It's not as though members of my client said … 'we're finally going to share this Dreaming story we've been keeping up our sleeve as a trump card for three years'," he said.
"Given the lack of control over the confidentiality of these stories … the persons consulted understandably were hesitant throughout the process.
The declaration was made over part of the the Belubula River and its headwaters. (ABC Central West)
Mr Goodwin said they went into further detail about the area's significance because of the threat posed by drilling.
He said although the section 9 application was denied, the elders gave permission for the collection of Dreaming stories to be used in Ms Reynolds ongoing section 10 protection bid.
He argued the Blue Banded Bee was "simply further evidence" of the area being significant, alongside other Dreamings, law and traditions.
'Reasonable' to accept Dreaming story
Mr Goodwin told the court it was reasonable to accept the Blue Banded Bee story was not brought up until three years after the initial protection action was filed because one of the cultural knowledge holders was hospitalised at the time.
He said Uncle Bill Allen was recognised as having "particular prominence" with the Dreaming, despite others knowing about it.
He explained that elders may hold certain parts of stories, and it was Mr Allen's "place and station" to choose when to share the knowledge.
The elders' group argued it was "far from irrational" for Ms Plibersek to accept Aboriginal evidence about traditions. (AAP: Mick Tsikas)
Mr Goodwin also maintained it was "logical" for the Commonwealth to use a public mural about the Blue Banded Bee as supporting evidence of its existence.
The court previously heard it was painted after an elder connected with WTOCWAC passed the story down to the younger Wiradyuri artist.
Mr Herzfeld said that reflected a "circular process" that was "self-reinforcing".
He also questioned why the Blue Banded Bee story was withheld in the early section 10 investigations if it was "publicly disclosed" in a mural.
Mr Goodwin outlined that during the disclosure of the Dreaming in December 2023, Uncle Bill Allen said only a "few people" knew the story.
The gold mine argued Ms Plibersek did not properly consider the risk to the project's future. (ABC News: Lani Oataway)
He said it was therefore "logical" that the mural reflected the story being passed down through generations from a small group of people.
He also observed there was an "unfortunate undertone" that suggested Aboriginal knowledge "required" expert or independent evidence to be true.
"Given the protection of Aboriginal tradition, it is far from irrational for the minister to rely on Aboriginal evidence that is shared intergenerationally," Mr Goodwin said.
Story required further investigation, mine says
In his reply, Mr Herzfeld maintained the Blue Banded Bee story was a "much more specific" tradition that required further investigation, rather than being treated as additional information.
The section 10 Aboriginal Protection Order made, in yellow, over part of the McPhillamys Gold Project site, in grey. (Supplied: Regis Resources)
He said there were documents — including from the Wellington Valley Wiradjuri Aboriginal Corporation that supported certain customs occurring in the region — that the mine did not have a chance to respond to during the protection decision-making process.
"It was adding weight to a highly controversial Aboriginal tradition," he told the court.
He also concluded Ms Plibersek did not "rationally" weigh up how the declaration could throw the mine's future into doubt.
He said her comments to media at the time demonstrated she believed a new tailings site could be found "quickly" and "cheaply."
Justice James Stellios has reserved his judgement and will deliver it at a later date.