The Federal Court rules Aboriginal heritage declaration in McPhillamys case invalid on procedural grounds

Decision clarifies when new evidence will restart the section 10 process 7 min read

In LFB Resources NL v Minister for the Environment and Water (No 3) [2026] FCA 1504, the Federal Court found that a section 10 declaration protecting part of the McPhillamys Gold Project site in New South Wales was invalid because new cultural heritage material was not considered in accordance with the required statutory process.

Key takeaways

• The Court found that the new cultural heritage material which emerged after the required statutory report was prepared, and was relied on by the Minister for Environment and Water (Minister), constituted a new application for the purposes of section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) and therefore required the statutory reporter and public consultation process to be recommenced. As that process had not been followed, the Court found that the section 10 declaration was invalid. This decision did not assess the merits of the section 10 application but rather turned on whether the correct statutory process was followed. The application now remains before the Minister. 
• New information provided after a section 10 report will not always amount to a new application. The test is whether it changes, in substance, the claimed particular significance of the area in accordance with Aboriginal tradition. Where it does, the statutory process must be recommenced through public notification and subsequent public consultation, so that the Minister can consider the statutory reporter's views on the new information before making a decision.
• In obiter, Justice Stellios said a section 10 declaration can operate indefinitely, but only if the Minister has genuinely considered the duration and expressly specified that duration in the declaration.

Background

The case related to a challenge to a declaration made by the Minister under the ATSIHP Act that protected a heritage site and prevented the area being used for planned mining activities. The decision attracted considerable media and industry attention.

The project in question is the McPhillamys Gold Project, which is a gold mine proposed by a subsidiary of Regis Resources Limited. Its area was included in an application under section 10 of the ATSIHP Act, made in October 2020. This is a provision that, in summary, allows an Aboriginal person to make an application to the Minister to protect a site from harm because of its cultural heritage significance. Aboriginal cultural heritage is generally regulated under State legislation, and the ATSIHP Act is sometimes considered legislation 'of last resort'. However, it has become an increasingly popular avenue used by Aboriginal parties seeking cultural heritage protection of sites in the face of planned developments (for example, several applications were made under the ATSIHP Act seeking to block construction of the proposed Olympic Stadium in Brisbane's Victoria Park).

Nyree Reynolds, a Wiradjuri Elder, lodged the application and sought a section 10 declaration to protect an area known as Kings Plains, which covered an area required for the proposed McPhillamys Gold Project.

On 7 September 2021, a statutory reporter was appointed to prepare a report under sections 10(1)(c) and (4) of the ATSIHP Act to assist the Minister's consideration of the application. A report was provided on 4 May 2022 (May 2022 Report) and concluded that, on the evidence provided, the particular significance of the specified area was 'elusive' and failed to meet the standard required under the ATSIHP Act. Accordingly, the reporter recommended against making a section 10 protection declaration.

Despite this recommendation, the Department of Climate Change, Energy, the Environment and Water (Department) subsequently advised the Minister that a declaration should be made over part of the specified area. The Department based its advice on new information concerning the Blue Banded Bee Dreaming story, which was provided after the May 2022 Report was finalised and was supported by the Wiradyuri Traditional Owners Central West Aboriginal Corporation. The Department treated this evidence as a 'further limb' or 'subset' of the original section 10 application rather than a new application, despite the fact it had not been considered in preparing the May 2022 Report.

In August 2024, the then Minister, Tanya Plibersek, relied heavily on the Blue Banded Bee Dreaming story when making a section 10 declaration over roughly 400 hectares of the McPhillamys Gold Project site, including the area where Regis Resources planned to build its tailings dam for mining waste.

The Minister maintained that the declaration could protect the relevant area while still allowing Regis Resources to develop the tailings storage facility elsewhere on the site. Regis Resources disagreed, arguing that the declaration affected a critical part of the site and rendered the project unviable.¹

In November 2024, LFB Resources NL, a wholly owned subsidiary of Regis Resources and the proponent for the McPhillamys Gold Project, launched judicial review proceedings in the Federal Court to challenge the validity of the Minister's declaration.

Findings

(a) New application

On 14 October 2026, Justice Stellios upheld the judicial review application and found the Minister's declaration invalid.

His Honour found that the Blue Banded Bee Dreaming story did not form part of the original section 10 application, but rather constituted a new application that required the statutory reporter and public consultation process to be recommenced before any declaration could lawfully be made.² As the Blue Banded Bee Dreaming story had bypassed the proper statutory process, Justice Stellios concluded that 'the declaration made by the Minister was without authority'.³

Importantly, the Court did not rule that new information provided after a section 10 report will always constitute a new application. Whether it does is a question of substance and degree, having regard to the facts of the particular case and the purpose of the statutory scheme.⁴

The test applied by the Court was whether the new information changed, in substance, the claimed particular significance of the area in accordance with Aboriginal tradition.⁵ Where it does, the statutory process must be recommenced via public notification so that the Minister's decision is informed by representations from interested persons on the new information and the views of the statutory reporter.⁶

The Court held that the Blue Banded Bee Dreaming story gave greater particularity to the claimed significance in the specified area, and constituted a new application, for the following reasons:⁷

• The statutory reporter had recognised the broader cultural significance of the area but found its specific and particular spiritual significance to be ‘less clear’. However, the subsequent revelation of the Blue Banded Bee Dreaming story provided greater particularity as to the area's claimed significance.
• There was a real chance that interested parties (including the Orange Local Aboriginal Land Council, which disputed the story's authenticity once notified) were denied an effective opportunity to make representations on the Blue Banded Bee Dreaming story during the reporting process. This denied the statutory reporter the opportunity to consider and form a view on any such representations and, further, denied the Minister the opportunity to consider the statutory reporter's view.
• The Blue Banded Bee Dreaming story was central and material to the Department's shift in its recommendation to the Minister that protection should be afforded to the area.
• The Explanatory Statement accompanying the declaration relied heavily on the story in reaching its conclusions on both the significance and threat questions.

Justice Stellios was also explicit that the decision turned on whether the correct process was followed as required by the Act, rather than the merits of the section 10 application. His Honour emphasised that the Court was not deciding whether the relevant area was a significant Aboriginal area, or whether it was under threat of injury or desecration.⁸ Those questions remain for the Minister to decide in accordance with the proper process under the ATSIHP Act.

(b) Duration of the declaration

Although it was unnecessary to decide the issue, Justice Stellios also considered whether the declaration was invalid because the Minister had failed to consider its duration, which LFB Resources NL advanced as being a mandatory relevant consideration for the making of a section 10 declaration.⁹

In obiter, his Honour said that the duration of such a section 10 declaration is an integral part of the statutory scheme and must be actively considered by the Minister.¹⁰ However, in this case the Minister had not independently turned her mind to duration, instead adopting an assumption made by others that the declaration would operate indefinitely.¹¹

His Honour also considered that, while section 10(2) of the ATSIHP Act requires the duration to be expressly specified in the declaration, it does not require that duration to be for a fixed or finite period. A declaration may therefore validly operate indefinitely, provided the Minister has genuinely considered its duration and expressly specified it in the declaration.¹² Accordingly, it was the failure to specify and properly consider the duration, rather than the indefinite duration itself, that would have rendered the declaration invalid on this basis.

Next steps

Justice Stellios found that the section 10 declaration was invalid and that therefore the existing application remained before the current Minister, Murray Watt. While final orders have not yet been made, his Honour indicated that the appropriate remedy, in his view, would be to declare the declaration invalid and remit the section 10 application to the Minister for reconsideration and determination according to law.¹³ The Court has directed the parties to provide submissions on final orders by 27 October 2026.

Following this decision, the Federal Government has indicated it will commence public consultation on reforming the ATSIHP Act before the end of the year. As reported by The Australian,¹⁴ a Federal Government spokesperson said the legislation was no longer fit for purpose and was 'failing to protect cultural heritage and unnecessarily delaying important economic activity'.

There has been talk of reform of the ATSIHP Act for several years now, dating back to the 2020 publication of the Never Again interim report of the Joint Standing Committee on Northern Australia, which recommended a review of the legislation. It may be that following this case, there will be reforms relevant to Aboriginal people, developers of major projects and government agencies.