Article by James Dowling and Lachlan Leeming, courtesy of The Australian
08.11.2025
Government lawyers have asked a court to keep troves of evidence from public view in a judicial review scrutinising Tanya Plibersek’s decision to block the development of the $1bn Blayney gold mine.
The Federal Court last month granted a non-disclosure order over the schedule of confidential information submitted by lawyers representing the Environment Minister’s office, and will consider whether to block publication on its contents at a hearing in December.
Opposition environment spokeswoman Angie Bell said the move was the latest example of the government flouting pledges to be transparent, following furious debate in the Senate over Labor’s failure to table the ‘jobs for mates’ report, and a push to introduce new fees on freedom of information requests.
“This government claims to have a transparency agenda, but to not publicise these documents completely contradicts that agenda,” Ms Bell told The Australian.
“We’ve seen them shut down debate, along with their plans to weaken freedom of information laws. It’s clear this government is all talk when it comes to their so-called transparency agenda and it’s not good enough.
“What is … this government trying to hide from Australians?”
Lawyers representing the Environment Minister in September requested the sweeping non-disclosure order over submitted evidence, which would obscure the contents for up to 30 years, or until the court ordered otherwise.
An application by The Australian for access to two months worth of submissions, affidavits and court documents filed since the submission was denied.
Asked about criticism over a lack of transparency on the case, as well as reasons for the non-disclosure order, a representative for the environment department said: “As this matter is before the court, it would not be appropriate to comment”.
Former environment minister Ms Plibersek’s decision in August last year to block the development of a tailings dam for Regis Resources’ McPhillamy’s project in the NSW central west under Indigenous heritage protection laws effectively scuttled the project and has been clouded in secrecy.
Her decision relied on the 11th-hour submission of a blue-banded bee Dreaming story by a member of the dissident Wiradyuri Traditional Owners Central West Aboriginal Corporation which has never been publicly disclosed and which Regis alleged was not subject to sufficient scrutiny or independent assessment, amounting to a failure of procedural fairness.
The Australian is unaware of the contents of September’s non-disclosure application, or any potential overlap it may have with the confidential Wiradyuri corporation evidence upon which Ms Plibersek based her decision.
The Australian understands that while the case was first filed against Ms Plibersek, responsibility for its handling shifted to the Department of Climate Change, Environment, Energy and Water after her departure to the role of Social Services Minister.
Federal Court judge James Stellios earlier this year granted another non-disclosure order protecting the identity of two people, including an Indigenous member of the Wiradyuri corporation – and a “transcript of oral representations” the person made during the decision-making process for the heritage decision.
He also provided the Wiradyuri corporation a maximum costs order to financially insulate them should the court rule in Regis’s favour.
Public understanding of the blue-banded bee Dreaming, its objective quality and the scrutiny it received has been unaided by repeated questioning, while legal mechanisms for government disclosure such as Senate estimate questions on notice and freedom of information requests have only scraped at the edges of Ms Plibersek’s decision-making process.
In her statement of reasons, Ms Plibersek cited a blue-banded bee mural in Bathurst, made in consultation with the Wiradyuri corporation, as central evidence in her final decision to veto the Blayney mine’s proposed tailings dam site.
This is despite senior Wiradjuri elders denying the significance of the Dreaming and the family of the elder who supposedly handed it down saying they had never heard of it.
The Dreaming story was submitted in December 2023 during a consultation process at the tail-end of the heritage investigation, nine months before Ms Plibersek’s decision. In Senate estimates, DCCEEW staff said the Dreaming was never independently assessed.
Regis will argue in court that Ms Plibersek’s decision was riddled with “irrelevant considerations”, failed to appropriately scrutinise evidence provided during consultation and used Indigenous cultural heritage as a trojan horse for environmentalism.
The Aboriginal and Torres Strait Islander Heritage Protection Act defining the heritage investigation process has been under review for years. Newly minted Environment Minister Murray Watt told The Australian in September that reforms would wait until after he legislated changes to the Environmental Protection and Biodiversity Conservation Act.
“There’s some good work happening on that (ATSIHPA) as well. The immediate priority is the EPBC reforms, but we’re continuing to work with business stakeholders, First Nations groups,” Senator Watt said.
“I think there’s some really good opportunities for a good consensus outcome there as well.”
