The Federal Court has invalidated a section 10 protection order issued by former environment minister Tanya Plibersek under the Aboriginal and Torres Strait Islander Heritage Protection Act, removing the legal barrier that mining company Regis Resources said made its McPhillamys goldmine at Blayney, NSW, unviable. Justice James Stellios ruled the order invalid on Wednesday, with full reasons to be published Friday. The protection order, issued in August 2024, blocked construction of a tailings dam in the headwaters of the Belubula River — a site the Wiradyuri Traditional Owners Central West Aboriginal Corporation identified as central to creation stories. Regis Resources argued the order, while not covering the mine site itself, made the broader development impossible. The company's legal team contended it was denied procedural fairness, pointing specifically to a blue-banded bee Dreaming story that influenced the government's decision but was not raised until two years after the initial section 10 application. Stelios was careful to frame the ruling narrowly: the court's decision "says nothing about the merits of the claim ... whether it's a significant area or under threat of injury or desecration." Those questions remain with the minister. But the practical effect is immediate — the protection order is gone, and the process resets to zero. Regis Resources anticipates current environment minister Murray Watt will be required to redetermine the section 10 application, though the company acknowledges this could be protracted and may not go in its favour. Hedging against that uncertainty, Regis is advancing an alternative mine design — an Integrated Waste Landform involving co-disposal of filtered processed ore and waste rock — that would entirely avoid the area covered by the now-invalidated declaration. The structural problem here is not one bad court ruling. It is that section 10 of the Heritage Protection Act has been used successfully only a handful of times in its history, and this rare deployment has now been overturned on process grounds rather than substance. The legislation was already functionally weak; this decision makes future ministers even less likely to invoke it. The chilling effect is the real extraction. Managing director Jim Beyer called the ruling "a significant and welcome step forward," framing two years of legal challenge as delay and uncertainty imposed on economic development. The company pitches the McPhillamys project as one of Australia's largest undeveloped gold deposits with "lasting economic and social benefits" for central NSW. What goes unweighted in that framing is the irreversibility of the trade — tailings dams in sacred headwaters are not a decision you can walk back. Comment has been sought from Minister Watt. The full reasons from Justice Stellios are expected Friday and will determine whether the procedural defect identified is easily correctable or structurally disabling for future heritage protection attempts.
