What has happened?
On 14 October 2026, the Federal Court of Australia handed down its decision in LFB Resources NL v Minister for the Environment and Water (No 3) [2026] FCA 1504. Stellios J held that the declaration protecting part of the Belubula River, its headwaters and springs at Kings Plains near Blayney is invalid. The declaration was made under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act).
The declaration (the Declaration) had stopped the McPhillamys Gold Project going ahead. LFB Resources NL (LFB), a subsidiary of Regis Resources, is the proponent. The project already had State significant development consent under the Environmental Planning and Assessment Act 1979 (NSW) and approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
The Court found a fatal flaw in the process. A Dreaming story was first raised about 19 months after the statutory reporter had delivered her report. In substance, it was a new application, so the reporter process had to start again, including public notice.
Context
Under s 10(1) of the ATSIHP Act, the Minister may make a declaration protecting a “significant Aboriginal area” from injury or desecration. Before doing so, the Minister must have:
“received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report”
Before submitting the report, the reporter must publish a notice in the Gazette and a local newspaper. The notice states the purpose of the application and invites representations from interested persons (s 10(3)). The report must deal with the matters in s 10(4). These include the particular significance of the area to Aboriginal people, the nature and extent of the threat, and “the duration of any declaration”.
The facts
24 October 2020: Ms Nyree Reynolds, a Wiradjuri Elder, applied for a s 10 declaration over the proposed mine footprint. One of the grounds was the area’s “spiritual connection to the Belubula River and its headwaters”. The application was later supported by the Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC).
4 May 2022: The reporter delivered her report. She recommended against a declaration because the “particular significance” of the area was not established on the evidence.
June 2022 – April 2023: The Department ran several rounds of procedural fairness consultation. In its last proposed recommendation before December 2023, it was still not satisfied that the headwaters and springs were significant Aboriginal areas.
November – December 2023: Ms Reynolds and WTOCWAC made a further emergency application under s 9. In oral submissions supporting it, WTOCWAC members described the Blue Banded Bee Dreaming story for the first time. Ms Reynolds and WTOCWAC then asked for that evidence to be applied to the s 10 application. The s 9 application was refused.
2024: The Department treated the Dreaming story as a “subset” of the original claim, not a new claim. It invited further comments from LFB, the Orange Local Aboriginal Land Council (OLALC) and others. Members of OLALC, including Wiradjuri Elders, disputed the story.
16 August 2024: The Declaration was registered. The Explanatory Statement relied substantially on the Blue Banded Bee Dreaming for both the significance and threat findings. On 9 September 2024, the Senate declined to disallow it.
Was the Dreaming story a new application?
The Court held that it was.
Relying on the Full Court’s decision in Tickner v Chapman (1995) 57 FCR 451 (the Hindmarsh Island case), the Court held that the application defines the scope of the reporter’s function and the Minister’s power. If information revealed after the application has been notified changes the claimed particular significance of the area in accordance with Aboriginal tradition, there is in substance a new application. In that case the reporter process must start again.
The Court accepted that not every piece of new evidence will have this effect. The test is “one of substance that involves questions of degree”, and it is not whether the new information changed the decision-maker’s mind. In this case, the original application and notice described the relevant tradition “at a high level of generality and in an unparticularised way”. The Blue Banded Bee Dreaming supplied the particularity that the reporter had found lacking.
Four features of the process supported that conclusion:
The reporter had found that the area’s particular significance was unclear.
There was a real chance that people interested in the Dreaming story were denied an effective opportunity to make representations to the reporter. OLALC’s response once it learned of the story, and WTOCWAC’s reply, showed that the story was of real interest to Aboriginal communities and was disputed.
The story was central to the Department’s departure from the reporter’s conclusions.
The Explanatory Statement relied substantially on it.
The Department’s own consultation rounds were not an adequate substitute. The Court quoted Burchett J in Tickner v Chapman: the statutory notice “was not designed for them alone”.
The Minister argued that restarting the process could expose sensitive cultural information. The Court rejected that argument. It held that the Minister and the reporter can take reasonable steps to protect sacred information within the statutory process. Extra cost and delay were “the consequence of a legislative scheme deliberately designed” for informed, community-inclusive decision-making. Delay could be reduced by nominating the same reporter.
The Court stressed that its decision “say[s] nothing about the merits” of whether the area is significant or under threat. Those are matters for the Minister.
Duration of declarations
The Court also held:
Duration must be specified: Section 10(2) provides that a declaration “has effect for such period as is specified in the declaration”. The Court would have held that this requires the duration to be stated expressly in the instrument, and that failing to do so causes invalidity. The Declaration specified no period.
Indefinite duration is permitted: The Court accepted the Minister’s argument that a declaration may be indefinite, but the period must still be specified.
Duration must be considered: The Minister must actively consider duration. On the evidence, she had at most adopted others’ assumption that the Declaration would last indefinitely.
Uncertainty ground rejected: The Court rejected LFB’s argument that the Declaration’s prohibitions were too uncertain to be valid. It also rejected the argument that the reporter had failed to deal with duration.
Outcome
The Court indicated that it will declare the Declaration invalid and remit Ms Reynolds’ s 10 application to the Minister for determination according to law. Final orders and costs are subject to short written submissions, due on 27 October 2026. Costs between LFB and WTOCWAC were capped by an earlier order.
How will this affect you?
For proponents:
State consent and EPBC Act approval do not remove the risk of a Commonwealth heritage declaration. A s 10 application can remain on foot for years.
Watch closely for new cultural material raised after the reporter’s report, including in parallel s 9 applications. If it materially changes the claimed significance, the Minister may have no power to decide the application without a fresh reporter process.
Check that any declaration expressly specifies its duration.
For Aboriginal applicants and their advisers:
Identify the particular traditions relied on, and their connection to the area, as early as possible. If necessary, ask for confidentiality protections during the reporter process. Material that comes in late may lead to invalidity, even when the Minister accepts it.
For decision-makers:
Departmental consultation after the report is not a substitute for the statutory public notice and reporting process.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.