FEDERAL COURT OF AUSTRALIA

LFB Resources NL v Minister for the Environment and Water (No 3) [2026] FCA 1504

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00pm on 27 October 2026, the parties are to provide written submissions (of no more than 5 pages each) on the question of the appropriate form of orders that should be made (including as to costs) to reflect the reasons accompanying these orders.

2.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) and on the grounds referred to in s 37AG(1)(a) and (c) of the Act, there is to be no disclosure, by publication or otherwise, of:

(a)    the redacted reasons for judgment of Stellios J in LFB Resources NL v Minister for the Environment and Water (No 3) [2026] FCA 1504 (LFB (No 3)) until 4.00pm on 16 October 2026; or

(b)    the confidential reasons for judgment of Stellios J in LFB (No 3) until 5 December 2030.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STELLIOS J:

INTRODUCTION

1    This proceeding concerns an application by LFB Resources NL under s 39B of the Judiciary Act 1903 (Cth) to review the validity of a decision of the first respondent, the Minister for Environment and Water, to make the Aboriginal and Torres Strait Islander Heritage Protection (Kings Plains) Declaration 2024 under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The s 10 application was made by Nyree Reynolds, a Wiradjuri Elder, and was supported by the Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC), an Aboriginal corporation consisting of Wiradjuri persons and Elders.

2    These reasons should be read with LFB Resources NL v Minister for the Environment and Water (No 2) [2025] FCA 1527 and will use the pseudonyms adopted in that decision where relevant.

3    LFB contends that the Declaration will prevent it from proceeding to develop the McPhillamys Gold Project (proposed mine project) which has been granted approval under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

4    For the reasons that follow, I have concluded that the Declaration is invalid.

5    Before commencing those reasons, it is necessary at the outset to be clear about the basis of my decision. While the Declaration concerned the protection to be given to part of an area (the declaration area) identified in the application made under s 10(1) of the Act (the application area), the Court’s decision does not concern the merits of the assessment made by the Minister that parts of the application area satisfied certain preconditions for the making of a declaration. Those substantive preconditions include that the application area is a significant Aboriginal area as defined in the Act and that the application area is under threat of injury or desecration. Those are matters to be determined by the Minister — not this Court.

6    The Court’s decision that the Declaration is invalid is the sole consequence of a material deficiency in the process for making the Declaration. The provision to the Minister’s Department of information about the Blue Banded Bee Dreaming story constituted, in substance, a new application. Having been provided with that information after the completion of the reporter process required by s 10(1)(c), (3) and (4) of the Act, it was incumbent on the Minister, when properly advised, to refer the new application to a reporter nominated by the Minister to undertake the requisite statutory function, including, importantly, recommencing the public consultation process. Consequently, the Declaration made by the Minister was without authority.

7    To reiterate, the Court’s decision, and my reasons, say nothing about the merits of the claims that the declaration area is a significant Aboriginal area or that it is under the relevant threat. Within the constitutional arrangement for the exercise of governmental power, those are matters within the authority of the Minister to determine according to law — not within the jurisdiction of this Court in a judicial review proceeding.

BASIC FEATURES OF THE ACT

8    Before considering the background circumstances and LFB’s grounds of review, it is convenient to begin by identifying the basic features of the legislative scheme.

9    The purposes of the Act are set out in s 4:

The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.

10    These purposes are achieved, in part, by the establishment of a process for the making of declarations in relation to significant Aboriginal areas and objects. As will be further explained, the making of such declarations operates to impose restrictions on what can be done in relation to areas or objects that are subject to the relevant declaration.

11    Relevant to this proceeding are the powers to make declarations relating to areas in ss 9 and 10 of the Act. Those sections provide:

9 Emergency declarations in relation to areas

(1) Where the Minister:

(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and

(b) is satisfied:

(i) that the area is a significant Aboriginal area; and

(ii) that it is under serious and immediate threat of injury or desecration;

he or she may, by legislative instrument, make a declaration in relation to the area.

(2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.

(3) The Minister may, if he or she is satisfied that it is necessary to do so, declare by legislative instrument that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.

10 Other declarations in relation to areas

(1) Where the Minister:

(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

(b) is satisfied:

(i) that the area is a significant Aboriginal area; and

(ii) that it is under threat of injury or desecration;

(c) has 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; and

(d) has considered such other matters as he or she thinks relevant;

he or she may, by legislative instrument, make a declaration in relation to the area.

(2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:

(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:

(i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;

(ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and

(iii) specifying an address to which such representations may be furnished; and

(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

(a) the particular significance of the area to Aboriginals;

(b) the nature and extent of the threat of injury to, or desecration of, the area;

(c) the extent of the area that should be protected;

(d) the prohibitions and restrictions to be made with respect to the area;

(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

(f) the duration of any declaration;

(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

(h) such other matters (if any) as are prescribed.

12    Section 11 prescribes the content of such declarations. A declaration “shall”:

(a) describe the area with sufficient particulars to enable the area to be identified; and

(b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration.

13    I make four preliminary observations about the operation of ss 9 and 10 of the Act.

14    The first relates to the decision-making process. Reflecting the urgency attending s 9 applications, the only preconditions to the making of a declaration under s 9 are (a) receipt by the Minister of an application for the preservation and protection of a specified area from injury or desecration and (b) the Minister’s satisfaction that the area in question is a significant Aboriginal area and that it is under serious and immediate threat of injury or desecration.

15    By contrast, the decision-making process under s 10 is “more extensive and productive of information for the Minister”: Tickner v Chapman (1995) 57 FCR 451 at 488 (Kiefel J, as her Honour then was). In addition to (a) the receipt of an application for the preservation and protection of a specified area and (b) the Minister’s state of satisfaction, this time involving a lower threshold level of threat of injury or desecration, the Minister must, before making a declaration, also (c) nominate a person who is to provide a report to the Minister and consider the report and any representations attached to the report and (d) consider “such other matters as he or she thinks relevant”.

16    The second observation relates to the duration of a declaration. Again, reflecting its urgency, a declaration under s 9 “has effect for such period, not exceeding 30 days, as is specified in the declaration”, albeit that the duration of the original declaration can be extended by another declaration for a “further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days”: s 9(2) and (3). Thus, under s 9, the duration must be “specified in the declaration” but cannot extend beyond 60 days from the original declaration.

17    While there is no maximum period prescribed for the duration of a declaration made under s 10, s 10(2) nonetheless replicates the language of s 9(2) that a declaration “has effect for such period as is specified in the declaration”. Accordingly, the duration of declarations under each of ss 9 and 10 is prescribed by the Act, but set by reference to the period specified in the relevant declaration.

18    The third preliminary observation is that a declaration under s 9 or s 10 is made by legislative instrument. This is in contrast to an emergency declaration made by an “authorized officer” under s 18 of the Act which is stated not to be a legislative instrument: s 18(2B). The first respondent filed a notice of objection to competency to the extent that the proceeding sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) on the basis that s 10 declarations are not decisions of an administrative character. LFB submitted that it was not necessary for the Court to resolve that issue as there was no objection to the application under the Judiciary Act. In oral submissions, LFB made the formal submission that the making of a declaration is of an administrative character. However, given that the ADJR Act claim was not pressed, and the question of its character is not otherwise required to be determined in this proceeding, I do not need to consider that question.

19    The fourth preliminary observation concerns the consequences of non-compliance with a declaration. A person who engages in conduct that contravenes a provision of a declaration made under s 9 or s 10 in relation to a significant Aboriginal area commits an offence: s 22(1). The offences are indictable: s 23(1). The penalty is not insignificant even when tried summarily: ss 22(1), 23(3). Injunctions can also be sought in certain circumstances involving conduct or proposed conduct that constitutes or would constitute a contravention of a declaration: s 26. I will return below to look more closely at the operation of the relevant provisions once a chronology of events and the grounds of review have been identified.

BACKGROUND FACTS AND CHRONOLOGY OF EVENTS

20    In its application to this Court, LFB alleges the following background facts. I did not understand them to be contested. For convenience, I will generally use the shorthand “LFB” to also include the applicant’s parent company, Regis Resources Ltd.

21    LFB is proposing to develop the proposed mine project which is to be a large open cut gold mine. In July 2018, LFB lodged a preliminary environmental assessment for the proposed mine project with the former New South Wales Department of Planning and Environment and requested environmental assessment requirements under the EPA Act. In April 2019, LFB referred the proposed mine project to the then Minister for the Environment and Water for a decision as to whether it was a “controlled action” under the EPBC Act.

22    What happened from there was helpfully set out in a chronology agreed by the parties. To understand the context of the dispute, I will set out an outline of the chronology in some detail and return to particular aspects of the history in due course.

The declaration applications

23    On 24 October 2020, Ms Reynolds applied to the Minister for declarations under ss 9 and 10 of the Act in relation to land the subject of the proposed mine project. The application attached maps and a table of Aboriginal cultural heritage sites at the proposed mine site to be protected.

24    On 14 May 2021, MEMBER 1 and Tony Newman, on behalf of Ms Reynolds, provided further information to the Department in support of Ms Reynolds’ application. This included a submission prepared by the Orange Local Aboriginal Land Council (OLALC) in response to the Environmental Impact Statement prepared for the proposed mine project.

25    Additional information was provided by MEMBER 1 to the Department on behalf of Ms Reynolds on 31 May 2021.

The Minister’s decision to appoint a reporter and refuse the s 9 declaration

26    On 7 September 2021, the Minister appointed a reporter, Ruth Elvin, to provide a report under s 10(4) of the Act in relation to the s 10 application. On 22 September 2021, the Minister decided not to make an emergency declaration under s 9 of the Act.

Steps taken in relation to the reporting process

27    On 20 October 2021, the reporter published a notice of the s 10 application in the Commonwealth Gazette and invited representations from interested parties. On 28 October 2021, the reporter published a notice of the s 10 application in the Central Western Daily.

28    On 30 November 2021, the reporter attended a bus trip and received oral submissions from Ms Reynolds, MEMBER 1 and others at various locations in Kings Plains. On 1 December 2021, the reporter, with Ms Reynolds, attended the Wiradyuri Elders Hub at Charles Sturt University and received oral submissions from MEMBER 1 and others.

29    Between 3 December 2021 and 18 December 2021, various submissions were provided to the reporter. These included:

(1)    a submission by Ms Reynolds on 3 December 2021;

(2)    a submission by MEMBER 1 on 13 December 2021;

(3)    a written submission by LFB on 17 December 2021 attaching a number of reports assessing the Aboriginal cultural and historical heritage of the proposed mine project area. These included:

(a)    a 9 July 2019 Aboriginal and Historical Cultural Heritage Assessment by Dr Matt Cupper, LandsKape (Cupper report) (along with an addendum to that report dated 10 December 2020);

(b)    a 30 November 2021 report prepared by Dr Andrew Sneddon, Extent Heritage Pty Ltd (first Sneddon report), which included an attached document entitled “Bathurst Frontier Wars Research: Kings Plains Locality” by Coral Hardwick and Graham Wilson from Extent Heritage (Hardwick and Wilson report);

(c)    a 29 November 2021 Aboriginal cultural values mapping report by Dr Philip Clarke (first Clarke report); and

(4)    a submission by the Belubula Headwaters Protection Group (BHPG) on 18 December 2021.

30    On 20 December 2021, the submissions received were provided to the other interested parties.

31    Written response submissions were then provided to the reporter. BHPG provided a response submission on 6 February 2022. Further response submissions were provided on 21 February 2022, including:

(1)    a written response from the Environmental Defenders Office (EDO) on behalf of Ms Reynolds, including attaching a February 2022 report by Doug Williams, Technical Heritage Studies (Williams report), which reviewed the Cupper report, the Hardwick and Wilson report, the first Sneddon report and the first Clarke report;

(2)    written response submissions, respectively, by MEMBER 1, including attaching the Williams report, and by Mr Newman;

(3)    a written response submission from LFB attaching:

(a)    unredacted and redacted versions of a 1 February 2022 supplementary report from Dr Sneddon responding to the submissions made to the reporter; and

(b)    unredacted and redacted versions of a 1 February 2022 supplementary report from Dr Clarke responding to the submissions made to the reporter.

32    On 22 February 2022, in response to a request to view the response submissions, the reporter advised LFB that there would not be a further round of responses.

33    On 26 February 2022, the reporter attended a site visit with LFB.

34    On 4 May 2022, the reporter submitted her report to the Minister.

Rounds 1–4 consultations by the Department

35    Following the finalisation of the reporter’s report, the Department then engaged in various procedural fairness “Rounds” of consultations with interested persons seeking further submissions and evidence.

Round 1 consultations

36    On 10 June 2022, the Department wrote to LFB, WTOCWAC, Ms Reynolds, MEMBER 1, Mr Newman and BHPG inviting them to comment and provide further evidence in response to matters raised in a procedural fairness summary prepared by the Department, which included the Department’s proposed recommendation to the Minister (see below at [165]).

37    Separately, on 17 June 2022, the Department wrote again to the same group of persons inviting them to comment and provide further evidence in response to the matters raised in a summary of the s 10 report prepared by the Department.

38    On 24 June 2022, LFB responded to the Department’s procedural fairness summary.

39    On 28 June 2022:

(1)    the EDO, on behalf of Ms Reynolds, responded to the Department’s procedural fairness summary and the summary of the s 10 report; and

(2)    LFB responded to the Department’s summary of the s 10 report.

40    On 26 July 2022, MEMBER 1 responded to the Department’s summary of the s 10 report on behalf of Ms Reynolds.

Round 2 consultations

41    On 17 August 2022, the Department wrote to LFB, WTOCWAC, Ms Reynolds, MEMBER 1, Mr Newman and BHPG inviting them to comment and provide further evidence. The Department attached:

(1)    a document identifying the matters on which the Department sought further comments and submissions and summarising the key points received in response to the first Round of procedural fairness consultations (the proposed recommendation at this stage had changed from that communicated in the first Round of consultations, see below at [166]);

(2)    the Department’s procedural fairness summary and the summary of the s 10 report (provided in Round 1); and

(3)    the responses received from the Round 1 consultations.

42    Responses to the Round 2 consultations were provided by:

(1)    MEMBER 1 on 23 August 2022;

(2)    LFB on 31 August 2022; and

(3)    MEMBER 1, on behalf of Ms Reynolds, on 31 August 2022.

Round 3 consultations

43    On 7 September 2022, the Department wrote to LFB, WTOCWAC, Ms Reynolds, MEMBER 1, Mr Newman and BHPG inviting them to comment and provide further evidence in response to attached responses and representations, being:

(1)    the responses to representations provided to the reporter between 20 December 2021 and 21 February 2022; and

(2)    procedural fairness representations provided in response to the Department’s Round 2 consultations.

44    The responses to the Round 3 consultations were as follows:

(1)    On 21 September 2022, LFB responded, including attaching an 8 September 2022 supplementary report from Dr Sneddon reviewing and commenting on the Williams Report, MEMBER 1’s submissions of 21 February 2022 and 31 August 2022, the EDO’s submission of 21 February 2022 and BHPG’s submission of 6 February 2022.

(2)    On 21 September 2022, the EDO, on behalf of Ms Reynolds, responded.

(3)    On 24 February 2023, LFB provided the Department with a further response to the Round 3 consultations, including attaching:

(a)    a submission prepared by OLALC in 2019 in response to the Environmental Impact Statement prepared for the proposed mine project (being the same document provided on Ms Reynolds’ behalf on 14 May 2021);

(b)    OLALC’s 9 January 2023 submission to the New South Wales Independent Planning Commission (IPC) for the proposed mine project; and

(c)    the Bathurst Local Aboriginal Land Council’s 8 February 2023 submission to the IPC for the proposed mine project.

45    On 30 March 2023, the IPC approved the proposed mine project and granted a State Significant Development consent under the EPA Act authorising the carrying out of the project.

Round 4 consultations

46    On 19 April 2023, the Department wrote to LFB, WTOCWAC, Ms Reynolds, MEMBER 1, Mr Newman and BHPG inviting them to respond to OLALC’s submission to the IPC and to the Department’s updated preliminary findings which had changed again from that communicated in the Round 2 consultations (see below at [167]–[168]).

47    On 28 April 2023, the Department wrote to OLALC inviting OLALC to respond to the matters raised in the submissions from interested persons and the Department’s preliminary findings.

48    There were responses to the Department’s Round 4 consultations on 17 May 2023 by LFB, Ms Reynolds, WTOCWAC, and MEMBER 1 (on MEMBER 1’s own behalf and on behalf of Mr Newman). BHPG provided a response on 22 May 2023.

49    On 23 May 2023, a delegate of the Minister granted approval for the proposed mine project under the EPBC Act.

A further application under s 9 of the Act

50    On 21 November 2023, Ms Reynolds and the Directors of WTOCWAC applied to the Minister for a declaration under s 9 of the Act (the further s 9 application) in respect of the area the subject of the proposed mine project. While WTOCWAC had supported the s 10 application by Ms Reynolds, it joined Ms Reynolds as an applicant for the further s 9 application. The area identified in the further s 9 application was the same as the s 10 application area.

51    On 28 November 2023, LFB provided the Department with its initial response to the further s 9 application.

52    On 1 December 2023, the Department received oral submissions on behalf of WTOCWAC in relation to the further s 9 application, which included reference to a Dreaming story, described as the Blue Banded Bee Dreaming story.

53    On 6 December 2023, the Department received oral submissions from Ms Reynolds and MEMBER 1, which included a brief reference to the Blue Banded Bee Dreaming story.

54    On 8 December 2023, the Department provided LFB with additional documentation relating to the further s 9 application, including attaching:

(1)    the transcript of the oral submissions on 1 December 2023; and

(2)    a letter from WTOCWAC dated 8 December 2023.

55    On 13 December 2023, LFB provided its response to the further s 9 application and the additional documentation, including attaching:

(1)    a 13 December 2023 supplementary report from Dr Sneddon responding to the further s 9 application, the 1 December 2023 transcript and the 8 December 2023 WTOCWAC letter; and

(2)    an 11 December 2023 supplementary report from Dr Clarke responding to the further s 9 application, the 1 December 2023 transcript and the 8 December 2023 WTOCWAC letter.

56    On 15 December 2023, Ms Reynolds and WTOCWAC each advised the Department that they wished to include the evidence from the further s 9 application in support of the s 10 application.

57    On 21 December 2023, the Minister decided not to make the declaration in respect of the further s 9 application.

58    On 22 December 2023, the Department informed LFB, WTOCWAC and Ms Reynolds of the Minister’s decision on the further s 9 application. LFB, WTOCWAC and Ms Reynolds were informed that, while the Minister was satisfied that part of the area was a “significant Aboriginal area” for the purpose of the Act, the Minister was not satisfied that the area was under “serious and immediate threat of injury or desecration”.

Rounds 5 and 6 consultations

59    Following the Minister’s decision not to make a declaration under s 9, the Department continued with further consultations on the s 10 application.

Round 5 consultations

60    On 8 January 2024, the Department wrote to LFB, WTOCWAC and Ms Reynolds to provide them with an opportunity to comment and provide further information on the 1 and 6 December 2023 transcripts, LFB’s responses on 28 November 2023 and 13 December 2023, and the Department’s updated preliminary findings taking into account that further information. These preliminary findings will be further discussed below at [188]–[189]. However, in short, the Department’s preliminary view had changed from the view communicated on 19 April 2023.

61    On 6 February 2024, the Department wrote to OLALC to provide them with an opportunity to comment and provide further evidence on the 1 December 2023 transcript and the Department’s preliminary findings.

62    On 9 February 2024, LFB responded to the Round 5 consultations, including attaching:

(1)    a 7 February 2024 supplementary report from Dr Sneddon (7 February 2024 supplementary Sneddon report) responding to the Round 5 consultations, including the transcripts of 1 and 6 December 2023; and

(2)    a 6 February 2024 supplementary report from Dr Clarke (6 February 2024 supplementary Clarke report) responding to the Round 5 consultations, including the transcripts of 1 and 6 December 2023.

63    WTOCWAC also responded to the Round 5 consultations on 9 February 2024. OLALC responded on 16 February 2024.

Round 6 consultations

64    On 27 February 2024, the Department wrote to LFB, WTOCWAC, Ms Reynolds and OLALC to invite them to respond to redacted extracts of WTOCWAC’s Round 5 submission, the 7 February 2024 supplementary Sneddon report, the 6 February 2024 supplementary Clarke report and OLALC’s response to the Round 5 consultations.

65    On 4 March 2024, the Wellington Valley Wiradjuri Aboriginal Corporation (WVWAC) telephoned the Department regarding the s 10 application and, on 5 March 2024, the Department wrote to WVWAC inviting them to provide any information regarding the existing claims of significance and threat to the application area.

66    Responses to the Round 6 consultations were provided by WTOCWAC on 6 March 2024 and by LFB on 7 March 2024. Also on 7 March 2024, WVWAC responded to the Department’s email of 5 March 2024.

First decision brief

67    On 19 April 2024, a decision brief was sent to the Minister’s Office recommending that the Minister make a declaration under s 10 of the Act over part of the application area (first decision brief).

68    On 24 May 2024, the Minister instructed the Department that she would like additional information on the impact of the Department’s proposed partial declaration decision on the proposed mine project including whether there was any potential alternative for the tailings storage facility (or tailings dam) which would be located within the application area (and, ultimately, within the declaration area) and which is claimed by LFB to be a critical aspect of the proposed mine project.

Round 7 consultations

69    On 29 May 2024, the Department wrote to LFB to implement the Minister’s instructions and requested information from LFB on the impact of a declaration on LFB’s operations and whether LFB could modify its operations, including the use of an alternative site for the tailings dam, to minimise or avoid those impacts. The Department provided LFB with draft clauses 5 and 6 of the declaration and a map of the proposed declaration area.

70    On 30 May 2024, the Minister signed and annotated the first decision brief with her instructions.

71    On 11 June 2024, LFB responded to the Round 7 consultations.

Second and third decision briefs

72    On 23 July 2024, a second decision brief was sent to the Minister’s Office, similarly recommending that the Minister make a declaration under s 10 over part of the application area.

73    On 13 August 2024, a third decision brief was provided to the Minister, which left unchanged the recommendation provided by the Department to the Minister in the second decision brief.

74    On the same day, the Minister agreed with the Department’s recommendations and signed the second and third decision briefs.

Declaration and statements of reasons

75    On 16 August 2024, the Declaration and the Explanatory Statement for the Declaration were registered on the Federal Register of Legislation. On 9 September 2024, the Australian Senate declined to agree to a motion to disallow the Declaration.

76    On 11 October 2024, the Minister signed her statement about the making of the Declaration (Minister’s October statement).

GROUNDS AND EVIDENCE

77    The application before the Court alleged that the Declaration was invalid on a number of grounds. They can be summarised as follows:

(1)    Ground 1A was directed to the alleged failure by:

(a)    the Minister to specify a period of time in the Declaration (ground 1A(a)) or consider the period for which the Declaration should have effect (ground 1A(c)); and/or

(b)    the reporter (nominated by the Minister) to deal with the duration of any declaration in her report (ground 1A(b)).

(2)    Ground 1 was directed to the alleged failure by the Minister to treat claims raised after 4 May 2022 (being the date the reporter’s report was submitted to the Minister) as a new application under s 10(1) of the Act and/or to seek a new or amended report under s 10(4) of the Act between 4 May 2022 and 13 August 2024 (being the date the Minister signed the second and third decision briefs), with the result that the Minister lacked the power to make the Declaration (ground 1(a)) or the Minister’s decision was legally unreasonable (ground 1(b)).

(3)    Ground 2 alleged a denial of procedural fairness on the basis that (a) LFB was not provided or afforded an opportunity to comment on certain information relied upon by the Minister in making the Declaration (ground 2(a)) and/or (b) the Minister did not consider the confidential version of certain documents provided by LFB (ground 2(b)(i)).

(4)    Ground 5 was directed to alleged errors in the factual findings made by the Minister that LFB could pursue a different option for the proposed mine project without significant additional expense and/or time being needed.

(5)    Ground 6 alleged that the Declaration was so uncertain as to render the Declaration invalid.

(6)    Ground 9 alleged that the making of the Declaration was legally unreasonable because (a) in exercising the residual discretion in s 10(1) of the Act, the Minister had not formed a view on whether the making of the Declaration would mean that the proposed mine project would still be viable or not (ground 9(a)) and/or (b) the Minister accepted certain matters in relation to the existence of Aboriginal traditions without sufficient probative evidence (ground 9(b)–(e)).

(7)    Ground 10 alleged that the Minister failed to discharge the statutory task or consider a relevant consideration by not considering certain confidential versions of documents attached to the reporter’s report.

78    Other grounds raised in the amended originating application were abandoned.

79    At the commencement of the trial, there were a number of evidentiary disputes in relation to which I gave indicative rulings. I will only deal with the objections in these reasons to the extent necessary.

80    The Minister sought to tender documents concerning the further s 9 application made by members of WTOCWAC and Ms Reynolds on 21 November 2023. That application was referred to above at [50] and will be discussed in the reasons below. My indicative ruling was to admit the evidence subject to relevance. LFB did not want to be heard further on that ruling. In addition to considering the existence of the documents as reflected in the agreed chronology, I consider that the content of the following documents is relevant to ground 1 and I have considered them for that purpose:

(1)    The further s 9 application;

(2)    Emails from the WTOCWAC members and Ms Reynolds to the Department indicating that the evidence submitted for the further s 9 application be applied to the s 10 application; and

(3)    The decision brief to the Minister in relation to the further s 9 application (with attachments).

81    Documents arising from the various procedural fairness Rounds undertaken by the Department are also relevant to ground 1. LFB did not press further my indicative ruling to admit that evidence subject to relevance. In particular, there are emails sent from the Department which attached proposed recommendations to the Minister that are relevant to my analysis on ground 1.

82    The Minister objected to documents regarding the permissible activities in the declared areas. Those objections, and my indicative rulings, will be dealt with under ground 6.

83    The only indicative ruling that was further contested related to the admissibility of the Minister’s October statement. LFB objected to admissibility on hearsay grounds under s 59(1) of the Evidence Act 1995 (Cth). It submitted that the only possible exception to s 59 in this case was s 66A of the Evidence Act which relevantly provides that the hearsay rule does not apply to evidence of a person’s previous representation if it was a “contemporaneous representation” about a person’s state of mind. In this respect, the dispute reduced to the question of whether the Minister’s October statement was a “contemporaneous representation”.

84    LFB accepted that the Explanatory Statement was admissible under s 66A as a contemporaneous representation, but contended that the Minister’s October statement which was prepared months after the Declaration was not. This was said to be underscored by the assistance provided to the Minister by the Department in preparing the statement.

85    The Minister contended that, in the circumstances, there was reasonable or substantial contemporaneity and that there was no reason why the Minister could not have relied upon the assistance of her Department. Further, in addition to s 66A, it was submitted that the Minister’s October statement could be admitted for a non-hearsay purpose under s 60(1) of the Evidence Act as evidence of the Minister’s knowledge or state of mind, although senior counsel for the Minister appeared to accept at the hearing that under that alternate pathway the previous representation would still have to satisfy a test of contemporaneity.

86    LFB contended in reply that the purpose of relying on the Minister’s October statement could not be characterised as a non-hearsay one. That the statement was made by the former Minister was not an issue in dispute. It was submitted that what the Minister was seeking to do was to rely on the statement to prove the truth of the assertion made by the former Minister in the statement that these were her reasons at the time.

87    Because I have concluded that the Declaration is invalid under ground 1(a), it is not necessary for me to determine this admissibility question, and I refrain from expressing a view on these issues.

88    The Minister relied on the affidavit of Public Servant 2 dated 25 July 2025. To the extent that this evidence outlined the documents in relation to which objections were made, I have treated that evidence consistently with how I have explained the treatment of my indicative rulings.

THE DESIGN OF THE LEGISLATIVE SCHEME IN MORE DETAIL

Statutory preconditions to the making of a declaration under s 10(1)

89    With the benefit of the background facts and an outline of the chronology of events, it is necessary to return to the legislative provisions to elaborate on the design of the legislative scheme for the making of declarations under s 10(1) of the Act.

90    As Black CJ said in Tickner v Chapman at 455:

The Parliament has made its intention clear … that there are preconditions to the exercise by the Minister of the wide and important power conferred by s 10(1). These preconditions appear in s 10 itself, the relevant parts of which read as follows:

[His Honour extracted subsections (1) and (3) and continued:]

It will be seen that before the Minister may make a declaration in relation to an area, he must receive a report in relation to the area from a person he has nominated and must consider that report and, as well, any representations attached to it: see s 10(1)(c). Another requirement of s 10 is that before a person submits a report to the Minister for the purposes of s 10(1)(c), that person must publish a notice in the Gazette and in a local newspaper, if any, stating “the purpose of the application” made under s 10(1). The reporter must give “due consideration” to any representations furnished in accordance with the notice and must attach them to the report when submitting it to the Minister.

The s 10 application

91    The process for a s 10 declaration commences and concludes with s 10(1). It is necessarily implicit in s 10(1) that an application can be made to the Minister “seeking the preservation or protection of a specified area from injury or desecration”. An area shall be taken to be “injured or desecrated” for the purposes of the Act if (s 3(2)(a), emphasis added):

(i) it is used or treated in a manner inconsistent with Aboriginal tradition;

(ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or

(iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition …

92    “Aboriginal tradition” is defined in the Act to mean (s 3):

the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

93    Thus, an application made under s 10(1) has the following statutory features:

(1)    its purpose is to seek the preservation or protection of a specified area from particular harm (ie, injury or desecration); and

(2)    that particular harm is identified by reference to conduct that has an adverse impact on Aboriginal tradition as defined.

94    In addition to being the (implied) source of the entitlement to make an application, s 10(1) also is the source of the power to make a declaration upon satisfaction of certain preconditions. I now turn to consider those preconditions.

State of satisfaction

95    First, the Minister must have formed the requisite state of satisfaction:

(1)    that “the area” (necessarily the area specified in the application – see Tickner v Chapman at 480 (Burchett J)) “is a significant Aboriginal area”: s 10(1)(b)(i) (emphasis added) (the character question). It is important to note how the requisite character of the area is identified in the Act. “Significant Aboriginal area” is defined in s 3 to mean an area of land or water “being an area of particular significance to Aboriginals in accordance with Aboriginal tradition” (emphasis added). What is apparent, when s 10(1)(b)(i) is read with the definition of “significant Aboriginal area”, is that the requisite state of satisfaction involves an assessment by the Minister of the area having a particular significance “to Aboriginals in accordance with Aboriginal tradition” (emphasis added). The particularity of the significance is necessarily informed by “Aboriginal tradition” as defined in s 3; and

(2)    “that it” (again, necessarily, the same area) “is under threat of injury or desecration”: s 10(1)(b)(ii) (the threat question). As is evident from the text, the threat question is circumscribed by the definition of “injury or desecration” set out above at [91] and, thereby, is also necessarily and invariably informed by “Aboriginal tradition” as defined in s 3.

96    Thus, the Minister must reach a state of satisfaction about the character question and the threat question. Satisfaction of each of these matters requires reference to “Aboriginal tradition” as defined in the Act. As Kiefel J said in Tickner v Chapman (at 488), the Minister’s assessment “would require a substantial appreciation of the relevant customs or beliefs, their importance and how they might be impacted upon”.

The s 10(4) report

97    However, “[t]he scheme is not one whereby the Minister gives effect to an application fulfilling specified criteria nor is it one where the discretion given is to be exercised without the opportunity for others to influence or persuade the Minister of their views” (Tickner v Chapman at 489 (Kiefel J)). Further preconditions are found in s 10(1)(c). The Minister must have “received a report [from a reporter nominated by the Minister] under subsection (4) in relation to the area” (again, necessarily, the area in the application) and “considered the report and any representations attached to the report” (emphasis added). The nomination of a reporter is an “essential step” if a declaration is to be made under s 10(1) and required of the Minister “as a duty under the Act”: Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia [1996] FCA 395; 67 FCR 40 at 46 (Black CJ, Burchett and Kiefel JJ).

98    The matters to be dealt with in the report are specified in s 10(4). Relevantly, they include:

(1)    “the particular significance of the area to Aboriginals”: s 10(4)(a) (emphasis added). The language in s 10(4)(a) corresponds with the definition of “significant Aboriginal area” in s 3 – a precondition of which the Minister must be satisfied before making a declaration (ie, the character question). Given the requisite state of satisfaction under s 10(1)(b)(i), “the particular significance of the area to Aboriginals” of which s 10(4)(a) speaks must, by dint of the definition in s 3, be the particular significance “to Aboriginals in accordance with Aboriginal tradition”;

(2)    “the nature and extent of the threat of injury to, or desecration of, the area” (s 10(4)(b)) (which corresponds to the threat question under s 10(1)(b)(ii));

(3)    “the prohibitions and restrictions to be made with respect to the area” (s 10(4)(c)); and

(4)    “the duration of any declaration” (s 10(4)(f)).

99    The importance of these (necessarily) interrelated matters can readily be appreciated alongside s 11(b) which provides that a declaration “shall … contain provisions for and in relation to the protection and preservation of the area from injury or desecration” and s 10(2) which provides that a declaration “has effect for such period as is specified in the declaration”.

The residual discretion

100    Even if the Minister is satisfied of the preconditions in s 10(1)(b), there is a residual discretion to refuse to make a declaration. As French J (as his Honour then was) said in Tickner v Bropho (1993) 40 FCR 183 (at 223):

Parliament has reserved to the Minister an ultimate discretion evidenced by the word "may" in the concluding clauses of s 10(1). The discretion thus conferred permits consideration of matters other than those necessary to answer the threshold question whether the area is a significant Aboriginal area and whether it is under threat of injury or desecration. If the discretion did not permit the consideration of other matters, it would be redundant. Matters which may be considered are indicated by the list of things required to be dealt with in a s 10(4) report. The significance of an area and the existence of a threat of injury or desecration to it having been established, the level of significance and the degree of injury or desecration become relevant (s 10(4)(a) and (b)). So too do private interests of a proprietary or pecuniary nature which would be affected by the making of a declaration (s 10(4)(e)) and the extent of protection available under State or Territory laws (s 10(4)(g)). Factors relevant to the exercise of the discretion are not limited to those matters.

See also at 209 (Lockhart J).

101    In exercising that discretion, the Minister is, necessarily, involved in a “balancing process” which requires the Minister to balance or weigh “on the one hand the considerations of significance of the area to the Aboriginal people and the threat of injury or desecration of the area and on the other hand any other matters which may be considered relevant”: Tickner v Bropho at 209 (Lockhart J); see also at 233 (French J); Tickner v Chapman at 470 (Burchett J), at 493 (Kiefel J).

The role of the reporter

102    To properly understand the legislative scheme, more needs to be said about the role of the reporter. The function performed by the reporter is “an integral part of the process of the Minister’s exercise of power”: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); see also at 24 (Gaudron J), 30 (Kirby J). It is integral to that process in at least two ways.

103    First, before the reporter submits the report to the Minister, the reporter must publish (in the Gazette and in any local newspaper) a notice:

(1)    “stating the purpose of the application … and the matters required to be dealt with in the report”: s 10(3)(a)(i) (emphasis added); and

(2)    “inviting interested persons to furnish representations in connection with the report”: s 10(3)(a)(ii) (emphasis added).

104    The policy of this notification feature of the reporter’s role was well captured by Black CJ in Tickner v Chapman (at 456, emphasis added):

The legislative intention revealed by this scheme is that interested members of the public should have an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an application under s 10(1). The intention is that the Minister should make an informed decision on all relevant questions, with input from interested persons: see Tickner v Bropho at 194. The Parliament no doubt intended that the "interested persons" would include those who might oppose the making of a declaration as well as those who might support it.

105    As his Honour further said at 459, “[t]he purpose of the notice under s 10(3) is not to inform people with special knowledge, but to invite representations from interested persons in the public at large”. See also at 457, 462 (Black CJ), at 491 (Kiefel J); Tickner v Bropho at 194 (Black CJ).

106    His Honour further referred to the policy of the section as one “of public involvement in the process”: at 461. As Kiefel J said in Tickner v Chapman (at 491), “[t]he place the representations are given in the process, and the obligation on the Minister to consider them, show the importance given to them by the legislation”.

107    The aim of the scheme is thereby “to ensure a widely diffused public participation, so as to garner all the knowledge of the community”. In that way, the “process of inquiry will have the potential to be enriched from many sources”: Minister v Western Australia at 53. The matters of which the public are to be given notice were identified by Black CJ, Burchett and Kiefel JJ in the following terms in Minister v Western Australia (at 52):

The reporter then states the purpose of that application in public notices: s 10(3)(a)(i), so that the public is thereby informed of the area of land or water in question, the significance of Aboriginal tradition or culture said to be associated with it and how it is threatened. And they are advised of the matters the report will be dealing with, those set out in s 10(4).

108    The range of representations sought through the notification process was described by Kiefel J in Tickner v Chapman (at 490):

It was obviously considered by the legislature that information and views upon the need for protection on the one hand, and the effects it may have on the other, from a wider community perspective was necessary before the Minister made the final decision.

109    The effectiveness of the opportunity for the public to contribute to the decision-making process will depend on the information provided in the notice. It must be informative about the purpose of the application and the s 10(4) matters to be dealt with in the report. As Burchett J said in Tickner v Chapman (at 482, emphasis added), “[i]t is necessary that the notice inform persons, who may wish to make representations, about the questions raised in the particular case in respect of the various statutory issues”.

110    It is evident that the interests that are identified through this process, by legislative design, bear on both the Minister’s satisfaction of the character question and the threat question and also the exercise of the residual discretion.

111    Secondly, before giving the report to the Minister, the reporter must “give due consideration to any representations” and attach them to the submitted report: s 10(3)(b). As a precondition to making a declaration under s 10(1), the Minister must consider the report and any attached representations: s 10(1)(c). By interposing the reporter’s function of giving due consideration to the representations and providing a report, and the creation of an obligation on the Minister to consider both the report and the representations, the scheme establishes the reporter as having a central role in the decision-making process, through the preparation of a report, to assist the Minister to make an informed decision about the character question, the threat question and the exercise of the residual discretion. “The thrust of the legislative scheme”, as Foster J said in Anderson v Minister for the Environment, Heritage and the Arts [2010] FCA 57; 182 FCR 462 at [103], “is to transfer to the reporter … the investigative role and to provide to the Minister the benefit of the reporter’s investigations, the evidentiary material gathered by him or her and the recommendations made by him or her”.

112    Thus, the purpose of preconditioning the Minister’s power on the preparation of a report is to ensure that the declaration is “soundly based”: Wilson at 30 (Kirby J). As Black CJ said in Tickner v Bropho (at 194):

One of the purposes of the scheme established by ss 10(1)(c), 10(3) and 10(4) with respect to the provision of a report to the Minister is to provide the Minister with information about the particular significance of the subject area to Aboriginals and about the nature and extent of the threat of injury to the area. He is thus to be provided with fact and opinion about the matters that, for the reasons I have given, he is obliged to consider by reason of s 10(1)(b) when he has received a valid application for a declaration.

113    As to the relation between the report and the Minister’s power, Black CJ further said (at 194–195):

The provisions of s 10(1)(b) and s 10(1)(c) are closely linked, in that the report referred to in s 10(1)(c) inevitably bears directly upon the questions the Minister is required to address by virtue of s 10(1)(b), as well as upon matters going to the exercise of his discretion. … The report is part of the mechanism provided by the Act by which the Minister is to be informed in a particular way when considering an application for a declaration, including his consideration of the two critical matters referred to in s 10(1)(b).

114    In summary, these two legislative purposes — public involvement in decision-making and the central role of the reporter to assist the Minister in making their decision — are achieved by a legislative scheme with the following sequential features:

(1)    the public notification by the reporter of the purpose of the application and the matters required to be dealt with in the report (that is, the matters identified in s 10(4) including the significance of the area, the threat to it, prohibitions and restrictions, and the duration of any declaration);

(2)    the requirement for the reporter to invite and then give due consideration to any representations;

(3)    the requirement for the reporter to provide a report on the matters identified in s 10(4) and attach any representations; and

(4)    the requirement that the Minister consider the report and the attached representations and, thereafter, reach a state of satisfaction on the character question and the threat question, and decide whether to exercise the residual discretion.

Summary

115    In short, the legislative scheme is deliberately designed to authorise the Minister, upon satisfaction that the area has the requisite character and is under the identified threat, and following a process intended to inform decision-making through public notification and the report of a reporter, to make a declaration which, by legislative mandate, must contain prohibitions and restrictions that operate for a specified duration and give rise to the prospect of punitive consequences in the event of non-compliance. The power is discretionary in nature and involves the weighing of different interests, and there is a residual discretion to refuse to make a declaration even if the Minister is satisfied that the area has the requisite character and is under the identified threat.

116    With an understanding of the background and legislative scheme, the grounds can now be addressed.

GROUND 1

117    Ground 1 states:

The failure to treat claims raised by the Second Respondent and/or Third Respondent after 4 May 2022 as a new application under s 10(1) of the [] Act, and/or to seek a new or amended report under s 10(4) of the [] Act between 4 May 2022 and 13 August 2024 had the result that:

(a) the Minister did not have power to make the Declaration because a statutory precondition to the exercise of that power, being the receipt of a “report” within the meaning of s 10(1)(c) of the [] Act, was not satisfied; or

(b) the Minister’s decision was legally unreasonable.

118    As advanced in submissions, ground 1(a) was supported, in part, on the basis that the revelation of the Blue Banded Bee Dreaming story constituted a new application that required the reporting process to recommence afresh. If ground 1(a) is successful on this basis, the decision-making process was materially and incurably deficient, and the other grounds do not arise for consideration.

119    For the reasons that follow, I accept that LFB has succeeded in establishing ground 1(a) on that basis.

When will there be a new application?

120    The starting point is to consider when an application is taken to have been made, what authority it provides, and when it will be taken to have been overtaken by a new application.

121    The point at which an application crystallises was considered by von Doussa J in Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106; 123 FCR 62. His Honour rejected the submission “that an application is constituted by a single discrete communication”. Instead, “an application may be constituted by a number of on-going communications which may progressively add to the description of the area for which protection is requested, and even change the boundaries of the area” and “[i]t may also enlarge on the information given as the reason for fearing injury or desecration”: at [272]. His Honour then said (at [646]):

In my opinion, the essential content of an application for the purpose of the [Act], insofar as the purpose conditions the exercise of power, is crystallised at the time when notice of the application is published in accordance with s 10(3)(a) of the [Act].

122    That the application conditions the scope of the exercise of power under the Act was a point also made by Black CJ in Tickner v Chapman, where his Honour said (at 460):

The point is that the procedure under s 10 is directed to a particular application in respect of a specified area. The original application defines the scope of the Minister's powers with respect to that application and likewise defines the scope of the reporter's function.

123    Tickner v Chapman concerned an application under s 10(1) of the Act contained in a letter to the Minister. The application concerned certain sites in proximity to Hindmarsh Island described in the application letter dated 23 December 1993, as summarised by Black CJ, as “the two major campsite areas adjacent to the bridge approaches, and the sites on Hindmarsh Island as a whole”: at 459. Subsequent letters dated 7, 12 and 20 April 1994 enlarged the area adjacent to the proposed bridge and revealed information that changed the basis for the application from the protection of archaeological sites of Aboriginal camps to the cultural significance of the area more generally: see at 468–470 and 484–485. A subsequent meeting between the reporter and Ngarrindjeri women also revealed sacred information which had been communicated to the reporter on a confidential basis, and relied on in the report to the Minister and by the Minister in making the declaration. It had not been described in the application or the public notice.

124    Black CJ’s comments extracted above at [122] were directed to whether the reporter might treat the letter dated 7 April 1994 as a new application. While it was not necessary to decide the point, his Honour said that it was open to take the view that the subsequent letter “amounted to an entirely new application in respect of a much larger specified area”. If that were the case, “then that application should have been dealt with separately and a reporter appointed for that purpose”: at 459. In the absence of a separate nomination of a reporter to prepare a report on the new application, “there would simply be no power to make a declaration in relation to the different specified area”: at 459–460. The point of principle is that if new information is revealed after the initial application has crystallised, and that new information constitutes a new application, the Minister has no authority to determine that new application unless the reporter process is recommenced.

125    While Black CJ took this view in relation to new information that enlarged the area to be protected, his Honour was less certain as to whether such a consequence would follow if there had been a subsequent change to the activity or activities that were regarded as constituting injury or desecration or the reasons why such activities were regarded as constituting injury or desecration (at 460–461).

126    The other judges were clearer in this respect. Speaking of the precision necessary to describe an area to be specified in the application, Burchett J considered (at 481) that “[i]t is entirely probable, and reasonable, that when Parliament legislated for [the “far reaching effect” of a declaration], it demanded a precise claim, which could be adequately investigated and debated”. His Honour continued (at 481):

The requirement that the notice [under s 10(3)(a)] should state “the purpose of the application” involves more than the definition of the area to be specified. It refers to the nature of the threat apprehended and the protection required. Again, when an area is said to be of particular significance, it almost goes without saying that this significance would be expected to be capable of some clear statement, so as to show how the anticipated harm could occur, and how it should be prevented.

127    The public notice in question in Tickner v Chapman was “absolutely silent” about these matters and a person reading it would not know the significance of the application area to Aboriginal people in accordance with Aboriginal tradition (at 481). Further, in relation to the revelation of the sacred information imparted by the Ngarrindjeri women to the reporter, described by his Honour as “women’s business”, Burchett J expressed the following concerns about the notification process (at 482):

The potentiality for inadequate investigation is obvious. In such a situation, competing Aboriginal traditions, quite apart from competing anthropological or historical views about the tradition alleged, might easily go unheard. Parliament's clear purpose of ensuring an adequate public ventilation of the issues inevitably foundered.

Indeed, it seems plain that when the “women's business” was raised, and assuming those who raised it intended to pursue it notwithstanding the difficulties of confidentiality in which it was enmeshed, the Minister was required to deal with a fresh application under s 10(1). The grounds were quite different from those put forward in the application …, in relation to which the nomination of [the reporter] had been made. The area concerned was, of course, different too. What was in question was no longer a matter of camp sites and sites of archaeological interest, but involved the entire region the subject of the beliefs asserted as part of the “women's business”. In my opinion, an application so far removed from that originally made required a new nomination under s 10(1)(c) and a new notice under s 10(3).

For the Minister, it was argued that the respondents to the appeals received information individually from [the reporter] concerning the matters omitted from the statutory notice. This misses the point in more than one way. Apart from certain inadequacies in the information they received, what was so learned was learned at a very late stage, and later than a compliance with the statutory requirements would have ensured. But in any case, the statutory notice was not designed for them alone. It was intended to give all persons interested an opportunity to come forward, not just for their own sake, but so that the community, the Aboriginal applicants and the contestants would have the benefit of any favourable information thus obtained. In the present case, it cannot now be known what the result might have been had adequate notice been given.

128    His Honour was evidently of the view that the shift in the nature of the Aboriginal tradition sought to be protected, at least where the area had also been enlarged, was sufficient to change the character of the application necessitating a recommencement of the process.

129    Kiefel J expressed a similar view. Because the Minister had to be satisfied under s 10(1) that the area was an area of particular significance (at 490), when read with the definitions in s 3, the application (at 491):

… would require the identification of the tradition, the belief, custom or observance said to be associated with the land or waters. It would also identify those who held them or to whom the maintenance of them was of importance, and it would require an explanation of how it is apprehended they would be impacted upon.

130    Her Honour appeared in this passage to be of the view that the description of the application in s 10(1)(a), when read with the definitions in s 3, would require the notification process to identify the particular tradition, belief, custom or observance associated with the area to allow for representations to be made by interested persons on the particular application. As her Honour said (at 492):

It remains the case however that the objects of the section require sufficient information to permit an understanding of what the application concerns and to enable facts to be put forward and views expressed upon it and the making of any declaration. The wider community could not in my view be regarded as informed of the topic for their comment without a description of the land or waters and the tradition, the very matter sought to be protected by the declaration. As to the identification of the applicants, it seems to me that the explanation of the tradition will connect it with a group of people and that is the essential information.

… In the result [Parliament] has chosen to extend protection to those areas which are nominated, for which a reason is ascribed and which may be made known to the public for comment.

131    As to the emergence of further information after the initial letter on 23 December 1993, her Honour said the following about the information contained in the subsequent letters (at 492):

The Minister might have regarded the letters which followed as providing further information with respect to the earlier, incomplete, application or as a fresh application.

132    Counsel for WTOCWAC emphasised that her Honour was equivocal as to whether that further information was to be treated as a new application and, accordingly, it was submitted that her Honour was suggesting that the Minister could treat the information either as further information or as a fresh application without error.

133    I am not persuaded by that submission. At the time the subsequent letters were received by the Minister in Tickner v Chapman, the application had not yet crystallised through the publication of the s 10 notice, to use the expression from Chapman v Luminis, and because the information had been provided on a confidential basis, her Honour said that “[p]erhaps that made it unclear to the Minister or his advisers whether they were intended to be acted upon” (at 493).

134    Of more significance for the question arising in this case, was what her Honour said about the revelation of the sacred information imparted by the Ngarrindjeri women after the reporter had been appointed (at 493):

After [the reporter’s] meetings and the receipt of [the report containing the sacred information], however, differences were apparent in the wider, spiritual or cosmological meaning which the women associated with the area. In a sense they thereby constituted a separate group, even though they were part of a wider group of peoples and their concerns included the effect the bridge would have on all Aboriginal peoples. It seems to me, subject to one [presently immaterial] qualification, that a further application for protection by declaration had been received. This is a situation which Lockhart J in Tickner v Bropho at 209 thought possible and I respectfully agree with his Honour's observation that it would be necessary to commence the process with respect to the later application afresh, although some efficiencies might be realised, for instance in the nomination of the same reporter. …

135    Her Honour concluded that the later submission by the Ngarrindjeri women in question “was tantamount to an application itself because of the different area and tradition relied upon” (at 497). In Tickner v Bropho, Lockhart J had recognised that (at 209):

It is possible to envisage a case where an application is made under s 10 and the statutory process which it requires is put in train, yet in the meantime a further application is made under the section by or on behalf of a different Aboriginal or group of Aboriginals.

136    In my view, the following points may be distilled from the reasons in Tickner v Chapman:

(1)    The revelation of information after an application has been notified by the reporter may lead to the result that the original application has been overtaken, with the consequence that the process must be recommenced. I consider that such a consequence follows, as Kiefel J explained in Tickner v Chapman, as a matter of construction from the description of the application in s 10(1)(a), when read with s 3(2) and the definitions in s 3, and also from the very purpose of the notification process to solicit representations that will inform the determination to be made by the Minister under s 10(1).

(2)    At least for Burchett J and Kiefel J, the type of information that can lead to such a consequence includes information about Aboriginal traditions.

(3)    Whether new information is sufficient to lead to such a consequence must be informed by the need to ensure that the s 10 notice is informative of the purpose of the application and that the notification process thereby solicits informed representations from the public for consideration by the reporter and, subsequently, the Minister.

The application and notification process in this case

The s 10(1) application

137    The s 10(1) application was commenced by a letter from Ms Reynolds dated 24 October 2020. The thrust of the concern is set out in the following passages:

I am concerned that significant Aboriginal heritage is under threat due to the Proposed McPhillamys Mine Development, which will impact a place known locally as Kings Plains. The proposed mine footprint area is located in the head waters of the Belubula River, a major waterway in the region.

The area is of high significance to several local Aboriginal communities. A number of Aboriginal sites are located within the proposed mine footprint area and are formally registered on the Aboriginal Heritage Information Management System (AHIMS) managed by the NSW Government. There are also significant historical and cultural values that will also be impacted should the project go ahead.

138    The particular concerns included that (emphasis added):

(1)    “Aboriginal sites are at risk of destruction and desecration”;

(2)    “38 Aboriginal sites were identified within the proposed mine footprint area. However, it is highly likely that further surface and subsurface finds are present across the whole area”;

(3)    “There has been no acknowledgment of the important tangible and intangible cultural values of the Belubula River and its headwaters to the Aboriginal community. No efforts have been made to avoid or minimise harm to the river/headwaters despite concerns being raised repeatedly by the community”; and

(4)    “The proposed mine footprint area has national significance for its relationship with the NSW Frontier Wars during the 1820s”.

139    The description of the area to be protected included the following points (emphasis added):

(1)    “The proposed mine footprint area, as an important cultural landscape”;

(2)    “The Belubula River and its headwaters and tributaries”;

(3)    “The 38 Aboriginal sites outlined in the attachment Table 1”; and

(4)    A list was provided of “[a]dditional Aboriginal sites located within the proposed mine footprint area, but not included in the assessment”.

140    Importantly, under the heading of “Supporting evidence of Aboriginal tradition that explains the particular significance of the area and the source of injury or desecration”, Ms Reynolds stated (emphasis added):

The proposed mine footprint area has particular significance for the Aboriginal community given:

i.    The presence of Aboriginal sites, with one site still used by the Aboriginal community today

ii.    Its spiritual connection to the Belubula River and its headwaters

iii.    Its connection to Aboriginal people past

iv.    Its national significance in the events of the NSW Frontier Wars

Please see supporting evidence of this particular significance in Enclosures B.

141    In addressing the reason why the proposed mine project would be inconsistent with Aboriginal tradition, or would adversely affect the traditional use of the area, the letter stated (emphasis added):

These activities are inconsistent with Aboriginal tradition and will adversely affect the traditional use of the area for a number of reasons including [sic]:

ii.     Physical damage (including total destruction and possible harm)

iii.     Desecration of intangible values and the Aboriginal cultural landscape

iv.     Impacting access by the Aboriginal community to the area

v.     Increased risk of vandalism, loss of seclusion and privacy of the area

142    The application was supplemented on 14 May 2021 by additional material, including a submission from OLALC prepared as part of the Environmental Impact Statement process for the State Significant Development consent, that contained submissions on the cultural significance of the headwaters of the Belubula River. The submission said that the project would destroy significant Aboriginal history.

143    The supplementary material also included a document authored by Ms Reynolds, entitled “Statement of Significance”, in which she stated (emphasis added):

I call the lovely area where I live the valley of the Bilabula, which is the Wiradjuri way of naming our river. The entire Cultural landscape of this area is in my soul and in the soul of all Wiradjuri people and the wider community who are here now and have always been. …

Our beloved Bilabula rises near the Ochre site, it wends it’s [sic] way through the valley to eventually join the Bila Galari (Lachlan River), the Bila Marrambidya (Murrumbidgee River) then on to the Murray and ultimately to the sea. It may be tiny to start with but it is part of a very significant river system and many Dreaming stories follow it’s path and no one has the right to destroy this. No one. The salinity that could be caused by the 15 million litres of contaminated water Per Day will not help this river system. The Bilabula is like an artery through our land as shown by this painting I did to be permanently displayed in Blayney Hospital. I have used Wiradjuri symbols to tell the story of the Bilabula. The river is the life blood to animals along the way and to the people who grow food and use it for recreation. This river sustains life. It will not sustain life if the headwaters are poisoned, and that is not acceptable in any sense of fairness. …

As aforementioned I strongly oppose the development of the proposed McPhillamy's Gold mine due to the irreversible damage it will do to our river especially, and to the Aboriginal Cultural History that is part of us all here in Wiradjuri Country.

144    Also included was an article published in the Journal of the Anthropological Society of South Australia which contained various passages that were said by senior counsel for the Minister to demonstrate that the spiritual significance to be attributed to the Wiradjuri’s relationship with the river and its headwaters was at the heart of the claim made in the application, and that the spiritual connection was apposite to include Dreaming stories and initiation rites.

145    On 6 December 2021, WTOCWAC offered to support Ms Reynolds in her application.

Section 10(3)(a) notice

146    The notice given by the reporter pursuant to s 10(3)(a) of the Act repeated, in relevantly identical terms, the claims made by Ms Reynolds in the application. Relevantly, it included the area’s claimed significance because of:

    Its spiritual connection to the Belubula River and its headwaters

147    Potential stakeholders, including OLALC and neighbouring stakeholders adjacent to the proposed mine project, were contacted.

Representations and responses

148    Representations to the reporter were received from 10 persons or groups, including LFB. Representations supportive of making a declaration were made by all but LFB. Those contributors included Ms Reynolds, MEMBER 1, other WTOCWAC representatives, an ecologist, a historian and neighbouring residents. Representations were made that there is intangible and tangible Aboriginal heritage at the headwaters including songlines connecting the area to other areas which are the focus of the Three Brothers Dreamtime story.

149    Only LFB opposed the making of the Declaration. While OLALC expressed an interest in making a representation, it did not do so.

150    The reporter also allowed the interested parties an opportunity to respond to the representations. It is not necessary to outline the detail of the representations and responses, but it is helpful to have an appreciation of the information canvassed by the interested persons and the reporter.

151    LFB provided representations on the cultural significance of the specified area in the application. In particular, LFB had engaged an archaeologist, Dr Sneddon, and an anthropologist, Dr Clarke, to provide their opinions on various questions arising out of the s 10 application. In the first Sneddon report, Dr Sneddon addressed matters including:

(1)    “the significance of the Specified Area ‘to Aboriginals in accordance with Aboriginal tradition’”;

(2)    “the relative significance of the Specified Area ‘to Aboriginals in accordance with Aboriginal tradition’”; and

(3)    “the nature and extent of the threat of injury to, or desecration of, the Specified Area posed by the Project and certain drilling works”.

152    It is not necessary to set out the detailed conclusions reached by Dr Sneddon in the first Sneddon report. It is enough to say that the overall conclusion was “that a declaration under the [] Act (to protect and preserve the Section 10 Application area from injury or desecration), would not be warranted”.

153    In the first Clarke report, Dr Clarke addressed the question of “the intangible cultural heritage significance of the Specified Area ‘to Aboriginals in accordance with Aboriginal tradition’”. It is enough to say that the key findings of the report were not favourable to the s 10 application. Dr Clarke concluded that “there is no threat of injury to or desecration to significant intangible [or tangible] cultural heritage posed by the [proposed mine project]”.

154    While it is not necessary to refer to them in any detail, it should be noted that:

(1)    Further reports were provided by LFB from archaeologists and other heritage professionals that assessed the impacts of the project on Aboriginal cultural heritage. These reports were all prepared as part of the Environmental Impact Statement for the proposed mine project.

(2)    In response to Ms Reynolds’ supplementary Statement of Significance, LFB acknowledged that the area had cultural significance.

(3)    The first Sneddon report and the first Clarke report were criticised by an expert report commissioned by the EDO on behalf of Ms Reynolds. The first Clarke report also received criticism as inappropriate from one of the WTOCWAC representatives and BHPG.

(4)    Dr Sneddon and Dr Clarke responded to the criticisms in respective supplementary reports dated 1 February 2022 affirming their conclusions.

The s 10(4) Report

155    Reflecting the terms of the application and the public notice, the report reiterated that the scope of the application included the question of the “significant historical and cultural value [of the specified area] in relation to the traditional importance of the Belubula River headwaters”, and that one of the claims made in the s 10 application was that the specified area had particular significance because of “its spiritual connection to the Belubula River and its headwaters”.

156    In that respect, and under the heading of “Spiritual connection to the Belubula River and its headwaters”, the reporter noted that the claims in support of the s 10 application included that “[t]he headwaters [of the Belubula River] were part of the songlines and travel routes of Aboriginal people”; that it was [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]; and that it contained underground springs which were “referred to at times as ‘sacred’”. The reporter stated that LFB had acknowledged “that the river and its headwaters have cultural significance” and that “[t]here is no disagreement that the area was used by Aboriginal people, with waterways having significance for Wiradjuri people”.

157    However, the reporter stated that “[t]he specific and particular spiritual significance of the site is less clear” (emphasis added). The reporter recounted the representations made in support of the s 10 application, including that it was [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] is also significant”. However, the report also noted that “[c]ritics of this interpretation point to the lack of reference to major Wiradjuri mythologies in the recounting of the story that reduces its spiritual significance”. The reporter concluded that (emphasis in original):

Despite the caveat about the conclusiveness of [the foundational archaeological assessment] and the other reports that rely on it, and the general significance of waterways, there is limited current evidence in the representations and responses that the headwaters are of a particular spiritual significance as required under s 10(4)(a) of the [] Act. This issue will be further considered in the discussion of Aboriginal Tradition below.

158    Under the heading of “Aboriginal Tradition”, and having noted the statutory requirement that the area must be of particular significance “in accordance with Aboriginal tradition” as defined in s 3, the reporter also referred to the oral representation of members of WTOCWAC that the application area was [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. The reporter concluded:

That this would appear to be a story passed down through the generations and is linked to ‘traditions, observances, customs and beliefs of Aboriginals’ is clear. The link to the Specified Area is less clear, inasmuch as it is not recorded as being specified in the stories that have been provided in support of this s 10 application.

159    In response to the criticisms, contained in LFB’s expert report, that “as there is no linking to the Creation beings of Wiradjuri mythology, the Three Brothers Dreaming story is of recent origin”, the reporter noted that the expert’s cultural mapping was undertaken as a desktop exercise without community participation. The reporter observed that:

Further cultural mapping done in relation to the Specified Area would be enhanced by the researcher being able to tease out the connections to tradition and stories in person, if the Aboriginal participants chose to share their stories and knowledge.

In sum, the Specified Area appears to have connection to Aboriginal traditions of the region through the stories provided of the region and its place in the ceremonies that take place at Wahluu Mount Panorama. That the Specified Area is embedded in a larger landscape much of which is considered sacred is not to be discounted, despite the lack of tangible and intangible evidence about the specific traditional connections of the Specified Area itself.

160    In conclusion on the question of whether the application area had a “particular significance … to Aboriginal people”, the reporter said that “[t]he particular significance of the Specified Area … is elusive” (emphasis in original) and:

The relationship to tradition is described in terms of the broader landscape and connection to the sacred places that are the three mountains, including Wahluu Mount Panorama. The spiritual connection to the Specified Area is also part of the connection to the broader cultural landscape, to the importance of the river as part of that landscape, reflecting the complexity of connection to country. …

More comprehensive and complete archaeological and participatory cultural mapping assessment of the site would provide greater certainty about the role of the Specified Area. However, the current evidence available does not provide the basis for giving the Specified Area the particular significance required under s 10(4)(a).

161    The reporter’s conclusion on the question of the nature and extent of the threat of injury to, or desecration of, the application area (that is, the matter in s 10(4)(b)) followed from the conclusion on the area’s particular significance:

The extent of disturbance to over 40% of the Specified Area by the Project is dramatic, will damage any cultural value of the site and would constitute injury and desecration if the site were to be considered of particular significance. However, as the current evidence does not support the claim that the site is of particular significance under s 10(4)(a), the threat of injury or desecration to its particular significance is similarly not supported.

162    The reporter concluded that, “on the basis of the current evidence provided [] the Specified Area does not have the particular significance as required under s 10(4)(a) of the [] Act” and, accordingly, the reporter recommended that the Minister not make a declaration under s 10 of the Act in relation to the application area.

163    The purpose of canvassing these matters from the Report is not to evaluate the reporter’s findings and conclusions. The purpose is to highlight that the question of the particular significance of the application area was actively ventilated by the interested parties through their representations and responses, and addressed by the reporter in dealing with the matters identified in s 10(4). That question was addressed within the scope of, and by reference to the traditions articulated in, the s 10 application and the s 10 notice. The reporter’s conclusion that, on the evidence, the application area lacked particular significance rested on the finding that it was unclear how the traditions as articulated in the application to include Dreaming stories, and further explained through representations to include references to the Three Brothers Dreaming story and [REDACTED] [REDACTED], were linked to the application area. That is, the relevant traditions in the application and notice were stated at a level of generality that did not explain the particular significance of the application area, and the representations to the reporter had failed to provide that level of particularity connecting the traditions to the application area. More work was needed to provide greater clarity about the area’s significance.

164    As has been indicated earlier in these reasons, the reporter submitted the s 10 report on 4 May 2022 and, from 10 June 2022, the Department commenced various rounds of consultations with interested parties.

Department’s consultation Rounds

165    Within weeks of the s 10 report, and as part of the Round 1 consultations (see above at [36]), the Department invited further comment on various matters, including (emphasis added):

whether there is sufficient evidence to support the claimed significance of the Belubula River and its headwaters and tributaries, including on the basis that the waterways of the Belubula River have a significant connection and meaning for Wiradjuri people and the Wiradjuri people have ‘strong spiritual and cultural connections’ with the Belubula River, including from the Belubula River’s connection to songlines, the Three Brothers Dreaming, and burbangs / happenings at the headwaters of the Belubula River. The department proposes to make a recommendation to the Minister that she cannot be satisfied that the Belubula River and its headwaters are of particular significance for the purposes of s 10(1)(b)(i) of the [] Act, having regard to the lack of evidence supporting the connection between the relevant parts of the specified area and the songlines, dreaming stories and traditions; …

166    However, by the time of the Round 2 consultations on 17 August 2022 (see above at [41(1)]), the proposed recommendation to the Minister had changed. The Department invited comments and submissions on the question of (emphasis added):

whether there is sufficient evidence to support the claimed significance of the Belubula River headwaters and springs, on the basis that the Belubula River headwaters have connection to burbangs / happenings, and the springs are held as sacred to Wiradjuri people, with traditions relating to use of the springs containing elements of antiquity;

a. the department proposes to make a recommendation to the Minister that she can be satisfied that the Belubula River headwaters and springs are of particular significance for the purposes of s 10(1)(b)(i) of the [] Act, having regard to the evidence supporting the connection between the relevant parts of the specified area and traditions; …

167    The Department’s position was further developed in the Round 4 consultations on 19 April 2023 (see above at [46]). LFB had provided new information on 24 February 2023, and the Department considered that the submission contained “new and relevant information to the application”. The Department indicated that it had “updated its preliminary analysis” of the s 10 application. In relation to the significance of the application area, the Department stated (emphasis in original):

Based on the current evidence, the department proposes to recommend that the minister find that:

•    there is insufficient evidence to be satisfied that:

•    …

•    the Belubula River headwaters and springs are significant Aboriginal areas

•    …

•    the specified area is a significant Aboriginal area based on its place within a cultural landscape

168    However, the Department also stated its proposed recommendation would be that “there is sufficient evidence to be satisfied that the parts of the specified area comprising the Belubula River constitute a significant Aboriginal area” (emphasis added). While that was the recommendation on significance (ie, the character question), on the question of threat, the Department considered that “information provided to the department is sufficient to find the parts of the Belubula River within the specified area are not under threat of injury or desecration”. The Department was of this view, in part, because OLALC, as the body with cultural heritage responsibility over the application area, had submitted that Aboriginal cultural heritage identified and impacted within the specified area could be properly managed and protected.

169    It is clear that the Department’s position was being shaped by the ongoing procedural fairness Rounds.

Further s 9 application

170    On 21 November 2023, Ms Reynolds and the Directors of WTOCWAC applied to the Minister for a declaration under s 9 of the Act in respect of the s 10 application area. The further s 9 application was prompted by the fact that LFB had commenced drilling on the project site. Under the heading of “Supporting evidence of Aboriginal tradition that explains the particular significance of the area and the source of injury or desecration”, the letter stated that (emphasis added):

The proposed mine footprint area has particular significance for the Aboriginal community given:

i.     The presence of Aboriginal sites, with one site still used by the Aboriginal community today

ii.     Its spiritual connection to the Belubula River and its headwaters

iii.     Its connection to Aboriginal people past

iv.     Its national significance in the events of the NSW Frontier Wars

Please see supporting evidence of this particular significance in Enclosures B.

171    As to why the proposed mine would be inconsistent with Aboriginal tradition, the further s 9 application stated:

These activities are inconsistent with Aboriginal tradition and will adversely affect the traditional use of the area for a number of reasons including:

i     Physical damage (including total destruction and possible harm)

ii     Desecration of intangible values and the Aboriginal cultural landscape

iii     Impacting access by the Aboriginal community to the area

iv     Increased risk of vandalism, loss of seclusion and privacy of the area

172    It can be seen that these statements of significance and reasons why the proposed mine project would be inconsistent with Aboriginal tradition were in identical terms to the corresponding statements in the s 10 application dated 24 October 2020.

173    There is no doubt, then, that the further s 9 application in relation to the application area was presented on the basis of the same significance and threat as presented in the s 10 application.

The Blue Banded Bee Dreaming story

174    However, on 1 December 2023, oral submissions were made to the Department by Yanhadarrambal (Jade Flynn), Dinnawan Dyirribang (Bill Allen), Wirribee (Leanna Carr-Smith), and MEMBER 1. Mr Flynn identified himself as a Wiradyuri Community Elder and a director and public officer of WTOCWAC. Mr Allen identified himself as a Wiradyuri descendant and a member of WTOCWAC. Ms Carr-Smith identified herself as having Wiradyuri heritage and a member of WTOCWAC. MEMBER 1 identified themselves as having Wiradyuri heritage and [REDACTED] [REDACTED] [REDACTED]. The information provided was on behalf of WTOCWAC.

175    The purposes of the oral submissions were identified in the transcript of interview, including to discuss the significance of the area to Aboriginal people, the perceived threat of injury or desecration, the personal connections to the application area and the creation stories associated with the area.

176    References were made to the Blue Banded Bee Dreaming story, its connection to the Three Brothers Dreaming story, their importance to the application area and why it is sacred, and the impact that the proposed mine project would have on that sacred area and the tradition of telling those creation stories in the landscape. Artwork said to depict the Blue Banded Bee Dreaming story was provided to the Department. In short, it was said that the proposed mine project would be inconsistent with Aboriginal tradition.

177    Ms Reynolds and MEMBER 1 gave oral submissions on 6 December 2023, also making brief reference to the Blue Banded Bee Dreaming story and its connection to the area.

178    In response to the further s 9 application, LFB provided to the Department supplementary reports from Dr Sneddon (dated 13 December 2023) and Dr Clarke (dated 11 December 2023) casting doubt on the Blue Banded Bee Dreaming story. Both experts indicated that the responses were initial or preliminary because of the timeframe provided for LFB’s response.

179    Ms Reynolds and WTOCWAC advised the Department on 15 December 2023 that the evidence in support of the new s 9 application, including the Blue Banded Bee Dreaming story should be included in support of the s 10 application.

Decision on the further s 9 application

180    On 21 December 2023, the Minister decided that a declaration under s 9 would not be made. The following day, the Department informed LFB, WTOCWAC and Ms Reynolds that, while the Minister was satisfied that part of the application area was a significant Aboriginal area for the purposes of s 9(1)(b)(i) of the Act, the Minister was not satisfied that the area was under threat of serious and immediate injury or desecration for the purposes of s 9(1)(b)(ii).

181    The departmental summary and analysis provided to the Minister in an attachment to the decision brief recorded that the Blue Banded Bee Dreaming story was considered for the purposes of determining the further s 9 application.

182    The analysis noted the reporter’s conclusion that, while the application area provides a connection for Aboriginal people to the past, “the shape of the connection is not clearly outlined and supported by tangible evidence … or a more detailed description of Burbangs or intangible connection”. The Department’s analysis proceeded to express disagreement with the reporter’s conclusions in relation to Burbang on the basis that they relied “heavily on available archaeological and historical evidence, and [did] not place sufficient weight on the oral evidence submitted by the applicant and other Wiradjuri parties”.

183    Furthermore, the analysis stated that:

(1)    “The applicants’ evidence should be considered credible as it has been passed down through oral tradition and the applicants are Elders within the Bathurst Wiradjuri community”; and

(2)    “The department considers that the lack of written historical or tangible evidence does not negate the claim, which is supported by multiple Wiradjuri Elders who have demonstrated cultural knowledge of the specified area through the telling of the Blue Banded Bee and Three Brothers Dreamings”.

184    The analysis concluded that “[t]he department is of the view that the Belubula River headwaters and springs within the specified area are of particular significance to Aboriginal people in accordance with Aboriginal tradition”. The basis for the conclusion included that “[t]he Blue Banded Bee Dreaming tells the creation story of the Belubula River headwaters and springs within the specified area”.

185    The analysis also contains the following passage (emphasis in original, cross-reference to attachments omitted):

The section 10 reporter states ‘There is no disagreement that the area was used by Aboriginal people, with waterways having significance for Wiradjuri people. The specific and particular spiritual significance of the site is less clear’. Furthermore, she states ‘the current evidence available does not provide the basis for giving the Specified Area the particular significance required under s 10(4)(a)’.

a.    The department notes that the Blue Banded Bee Dreaming was provided subsequent to the finalisation of the section 10 report.

186    The analysis recommended the Minister “find that there is sufficient evidence the Belubula River that is situation [sic] within the specified area is of particular significance to Aboriginal people in accordance with Aboriginal tradition”. The basis for that conclusion included that, according to Wiradjuri tradition, the river is intrinsically linked to the springs and:

(1)    “As such, the existence of the river can be linked, through Aboriginal tradition, to the time of creation and is a reasonable extension of the Blue Banded Bee Dreaming”; and

(2)    “The parts of the Belubula River within the specified area are in proximity to the headwaters and springs, which are also described in the Blue Banded Bee Dreaming”.

187    It is clear from the Department’s concluding recommendation to the Minister on the further s 9 application that the Belubula River, its headwaters and springs were considered to be significant Aboriginal areas because there was “sufficient evidence to support the particular significance of the Belubula River, its headwaters and springs in relation to the Blue Banded Bee Dreaming and Burbang”. The Blue Banded Bee Dreaming story was thus considered, in large measure, to provide the specificity and particularity of the application area’s significance that the reporter found lacking.

Consultation rounds continued

188    Further opportunities were given to the interested parties to provide submissions on the s 10 application, including in relation to the transcripts relating to the Blue Banded Bee Dreaming story. On 8 January 2024, the Department sent an email to LFB with an attached letter which stated that the Department was “in its final stages of assessing” the proposed mine project and that the Department had “received further information in relation to the application”. The Department’s “preliminary findings taking into account that further information” were set out in the following terms in an attachment:

The department has updated its preliminary analysis of the application under section 10 of the [] Act, based on the submissions, information and documents provided to date. The department had revised its analysis with respect to both significance and threat. …

Based on the current evidence, the department considers that it may be open to the Minister to make a declaration over part of the specified area. …

Based on the further information received, listed in Annexure A [which, in support of the declaration, comprised the oral transcripts of 1 and 6 December 2023], the department has revised its previous preliminary finding on significance of the specified area.

189    Based on the prevailing evidence at that time, the Department indicated that it proposed to recommend that the Minister find that there was “sufficient evidence to be satisfied that … [t]he parts of the specified area comprising the Belubula River headwaters and springs are significant Aboriginal areas”.

190    Responses to this Round of consultations included:

(1)    Dr Sneddon and Dr Clarke provided supplementary reports dated 7 February 2024 and 6 February 2024 respectively which affirmed their opinions and expressed doubts about the Blue Banded Bee Dreaming story.

(2)    Members of OLALC, including Wiradjuri Elders, provided statements disclaiming any knowledge of the Blue Banded Bee Dreaming story and raised doubts about the accuracy and veracity of the claims that were made about that Dreaming story.

191    On 6 March 2024, WTOCWAC responded to the OLALC statements suggesting that OLALC had a vested interest in opposing the s 10 application. The letter further stated that “[d]espite the assertions made by the signatories of the OLALC … submission, we are aware of many members of the Aboriginal Community in Orange, Lithgow, Blayney, Bathurst and surrounding area who do not agree with these assertions whatsoever and do not recognise any of the signatories as holding any significant position of cultural authority in the region”.

192    In response to a telephone call on 4 March 2024, the Department wrote on 5 March 2024 to the WVWAC about the s 10 application. On 7 March 2024, WVWAC provided a response in which it supported the s 10 application, making reference to the “songlines to Kings Plains” as “an integral part of the ‘Three Brothers’ Dreamtime Lore”, and referring to the threat that mining would cause to the songline. There was no express mention of the Blue Banded Bee Dreaming story.

First decision brief

193    On 19 April 2024, the first decision brief for the s 10 application was sent to the Minister. It stated that the applicant’s claim that the specified area is a significant Aboriginal area was for reasons including that “[t]here is cultural and spiritual significance associated to the Belubula River, its headwaters and springs”. It also recorded that:

(1)    the reporter had recommended that a declaration not be made, but that the department’s recommendation was to make the declaration because “substantial new information has been provided by the applicant and supporting interested parties following the finalisation of the section 10 report”;

(2)    “Based on the available evidence, the department is of the view that there is sufficient evidence to conclude that part of the specified area is a significant Aboriginal area”;

(3)    “The department considers that there is sufficient evidence to establish that … the Belubula River, its headwaters and springs within the specified area is a significant Aboriginal area” (emphasis in original); and

(4)    “The department is of the view that part of the specified area, comprising the Belubula River and its headwaters and springs, is under threat of injury or desecration” because of the proposed mine project “which will damage the Belubula River, its headwaters and springs in a way that is inconsistent with Aboriginal tradition”.

194    The recommendation that the Minister “can be satisfied that part of the specified area comprising the Belubula River, its headwaters and springs, and the Dungeon Burial site are significant Aboriginal areas for the purposes of subsection 10(1)(b)(i) of the [Act]” (emphasis in original) was based on departmental analysis. That analysis was not before the Court. However, Public Servant 2 deposed that the corresponding analysis provided with the second decision brief, which was before the Court, was in materially identical terms. I will turn to that latter analysis below.

195    As indicated earlier in these reasons, the Minister did not agree to the recommendation in the first decision brief to make a declaration over part of the application area and, instead, instructed her Department to obtain additional information from LFB on the impact of the proposed s 10 decision on the proposed mine project including whether there was any potential alternative location for the tailings dam. LFB’s response was provided on 11 June 2024.

Second decision brief

196    The second decision brief was sent to the Minister on 23 July 2024. Amongst others, it attached a departmental summary and analysis. The Department noted that the Blue Banded Bee Dreaming story had not been raised at the time of the s 10 report and was only provided at a later stage in the application process. The Department accepted the reason provided for why it was not provided earlier, and noted that:

the department is not considering the Blue Banded Bee Dreaming as a new claim of the application, instead, it is considered as a further limb of the spiritual connection to the Belubula River, its headwaters and springs, the applicant has claimed in her application. Although the Blue Banded Bee Dreaming was not explicitly mentioned in the application, the applicant did submit that many Dreaming stories follow the river’s path.

197    And, further:

The spiritual significance of the Belubula River, its headwaters and springs was a claim raised by the applicant in the application. The department has considered the information on Blue Banded Bee Dreaming as a subset of this claim, not as a new claim in this application.

198    The Department addressed OLALC’s challenge to the validity and authenticity of the Blue Banded Bee Dreaming story. It stated:

A preliminary question therefore arises for your consideration, as in order to determine whether the Belubula River, its headwaters and springs are a significant Aboriginal area on the basis of this claim, you need to first be satisfied that the Blue Banded Bee Dreaming is a tradition and/or belief of Wiradjuri people.

199    It accepted the account of the story provided by WTOCWAC members, and that it was “corroborated” by a public artwork of the Blue Banded Bee Dreaming story on the Bathurst Post Office wall which was considered to be largely consistent with the account given by WTOCWAC. The Department considered that the concerns raised by OLALC members did “not disprove the existence of the traditions” and that the fact that OLALC members were unaware of the Dreaming stories “is consistent with Aboriginal oral tradition being passed down to specific Aboriginal people, often Elders, who are considered to be the knowledge holders of that information”.

200    Consequently, the Department considered “that the Blue Banded Bee Dreaming is an Aboriginal tradition in accordance with” s 3(1) of the Act. The Department recommended that the Minister find that the Belubula River, its headwaters and springs is a significant Aboriginal area under s 10(1)(b)(i) of the Act “on the basis of the sacred connection the area holds for Wiradjuri people through the Dreaming, Storylines and Lore which are represented in the Blue Banded Bee Dreaming”.

201    In support of that conclusion, the Department further considered that, “on balance”, there was sufficient evidence to support the location of Burbang as the headwaters of the Belubula River. It was said that “[t]he particular significance of the Belubula River, its headwaters and springs is further evidenced through the Blue Banded Bee Dreaming, which is a part of this cultural landscape, and speaks of the creation of the Belubula River, its headwaters and springs”. The Department’s overall conclusion on the character question in s 10(1)(b)(i) included that:

The department recommends that you find that there is sufficient evidence to support the particular significance of the Belubula River, its headwaters and springs to Wiradjuri people through the Blue Banded Bee Dreaming and that it is part of a broader cultural landscape where pre-initiation ceremonies occurred.

202    It is not necessary to go into detail about the Department’s analysis and recommendations in relation to the threat question in s 10(1)(b)(ii). It is enough to say that the Department recommended a finding that the proposed mine project will impact the Belubula River, its headwaters and springs in a manner inconsistent with Aboriginal tradition, including because the permanent and irreversible physical damage to those areas “will cause a disruption of the landscape from the Blue Banded Bee Dreaming and therefore a severance of tradition”.

203    A supplementary analysis by the Department noted LFB’s further submission that the declaration would be contrary to the submissions and advice of OLALC. However, the Department concluded that, under the Act, “Aboriginal traditions described by the applicant must be a body of traditions, observances, customs, and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people. However, a consensus view amongst all Wiradjuri people is not necessary”.

Third decision brief

204    The third decision brief was provided to the Minister on 13 August 2024. Its primary purpose was to update the Minister in light of a letter from the NSW Minister for Planning and Public Spaces, dated 6 August 2024, concerning the steps that had been undertaken under State law to consider Aboriginal cultural heritage values affected by the proposed mine project. It is enough to say that the Department did not consider that the letter changed its recommendation to the Minister that a declaration should be made.

205    On 13 August 2024, the Minister agreed with the recommendations in the second and third decision briefs.

Explanatory Statement

206    The Explanatory Statement accompanying the Declaration made on 16 August 2024 relevantly set out the following about the scope of the application:

This claim is on the basis that the Wiradjuri people have a significant spiritual connection to the Belubula River, its headwaters and springs through the overall intangible cultural heritage it embodies, including the Blue Banded Bee Dreaming. [The applicant and supporting parties] also claim that:

a. the specified area sits within an important cultural landscape of the Three Brothers Dreaming, containing sacred Songlines, ancestral/culturally modified trees, connections to Aboriginal people past and traditional pre-initiation ceremonies …

207    In relation to the character question, the Explanatory Statement stated that:

The Minister is satisfied that part of the specified area that comprises the Belubula River, its headwaters and springs (the declared area) is of particular significance to Aboriginal people in accordance with Aboriginal traditions on the basis of the sacred connection the area holds for Wiradjuri people through Dreaming, Storylines and Lore, one of which is the Blue Banded Bee Dreaming.

…

The Minister is satisfied that the source and validity of the Blue Banded Bee Dreaming as a tradition or belief of particular significance to the Wiradjuri people, and its connection to the declared area has been sufficiently evidenced by the applicant and [WTOCWAC]. In particular, the Minister accepts that the Blue Banded Bee Dreaming describes the creation of geographic features consistent with the Belubula Headwaters and its springs.

The Minister is also satisfied that the declared area is of particular significance to Aboriginal people in accordance with Aboriginal traditions on the basis that it sits within a broader cultural landscape in which that part of the specified area was used for pre-initiation ceremonies.

208    That led to the conclusion that “the Minister finds that the part of the specified area that comprises the Belubula River, its headwaters and springs is of particular significance to Aboriginal people in accordance with Aboriginal traditions”. Other aspects of the claim were not accepted by the Minister, but it is not necessary to outline those details.

209    In relation to the threat question, the Explanatory Statement included the following passages:

… the development of a mine, and in particular, a tailings storage facility, will cause physical damage to the specified area and restoration of the site will result in an altered watercourse of the Belubula River. These actions would be inconsistent with Aboriginal tradition as it would physically damage the watercourse. It would also disrupt the intangible values and connection between the watercourse and the Blue Banded Bee Dreaming and traditional ceremonies that were historically conducted in the declared area.

…

In relation to the declared area, the Minister accepts that the tailings storage facility required for the development of the mine will impact the Belubula River, its headwaters and springs in a manner inconsistent with Aboriginal tradition as it will cause physical and intangible damage to the Belubula River, its headwaters and springs through the construction and use of the tailings storage facility.

The Minister also accepts that the proponent’s planned rehabilitation of the mine site does not adequately address the restoration of damage or injury to the Belubula River, its headwaters or springs, as it would still result in permanent realignment of the river headwaters and damage to the springs. The Minister considers that the permanent realignment of the Belubula River would effectively destroy the area that is considered to be the headwaters, and that this would damage the sacredness of the watercourse as well as disrupt the connection between the watercourse and the Blue Banded Bee Dreaming and traditional ceremonies that were historically conducted in the area.

210    It further stated that the Minister considered “that there is sufficient evidence to conclude that [the] declared area is under threat of injury or desecration from the activities associated with” the proposed mine project.

211    In relation to the Minister’s consideration of the s 10 report, the Explanatory Statement stated:

In deciding whether to make a declaration, the Minister considered, for the purposes of paragraph 10(1)(c) of the Act, the report provided by the reporter and the representations attached to the report. This included consideration of the matters listed at subsection 10(4) of the Act.

212    It is clear from the passages above that the Blue Banded Bee Dreaming story formed a central and material reason for the Minister’s satisfaction of both the character question and the threat question. While it was stated that the Minister considered the s 10 report, it should be evident at this stage that the revelation of the Blue Banded Bee Dreaming story occurred after that report was provided to the Minister.

Minister’s October statement

213    As indicated earlier in these reasons, LFB objected to the tender of the Minister’s October statement. However, in relation to ground 1(a), the Minister’s October statement does not further assist the Minister’s position as it is largely consistent with what was set out in the Explanatory Statement.

214    The Minister’s October statement commences by outlining the bases of the s 10 application, including that “the Wiradjuri people have a significant spiritual connection to the Belubula River, its headwaters and springs through the overall intangible cultural heritage it embodies, including the Blue Banded Bee Dreaming”. The Minister found that (emphasis added):

(a) the headwaters of the Belubula River are of particular significance to Wiradjuri people as part of a broader cultural landscape where pre-initiation ceremonies occurred …;

(b) the Belubula River, its headwaters and springs is of particular significance to Wiradjuri people through the Blue Banded Bee Dreaming …;

(c) the Dungeon Burial site is of particular significance to Aboriginal people as an Aboriginal burial that occurred in accordance with Aboriginal tradition …

215    In relation to the Blue Banded Bee Dreaming story, the Minister (in summary):

(1)    considered the claim about the Blue Banded Bee Dreaming story to be “a subset of the claim in relation to the spiritual significance of the Belubula River, its headwaters and springs”, the broader claim having been made in the s 10 application;

(2)    found that the Blue Banded Bee Dreaming story “is an Aboriginal tradition in accordance with subsection 3(1) of the Act”;

(3)    acknowledged that the reporter did not assess the Blue Banded Bee Dreaming story “within the claim of the spiritual significance of the Belubula River, its headwaters and springs as the Dreaming had not been raised at the time of the Section 10 Report”, but noted that “interested parties were afforded the opportunity to consider and respond to the Dreaming claim during consultations following the submission of the Section 10 Report”; and

(4)    was satisfied that the evidence demonstrated how the Blue Banded Bee Dreaming story “is connected to, and holds significance in relation to, the headwaters and springs of the Belubula River” and, further, that “reference in the evidence to the springs and headwaters connects the Dreaming to the Belubula River”.

216    The overall conclusions in relation to the character question on the basis of the Belubula River, its headwaters and springs were as follows:

… I found that the Belubula River, its headwaters and springs are a significant Aboriginal area under section 10(1)(b)(i) because:

(a) the [Blue Banded Bee] Dreaming is a Wiradjuri belief that tells the creation story of the springs that give the Belubula River its name. These springs are clustered in and around the headwaters of the Belubula River. Therefore, I was satisfied that the Dreaming describes the creation of the Belubula River, its headwaters and springs;

(b) the springs within the specified area are held as sacred by the Wiradjuri people for its life-giving nature and traditional use including during times of drought, allowing the headwaters to be used as a reliable location for social, economic, and ceremonial gatherings by Wiradjuri people; and

(c) the parts of the Belubula River within the specified area can be considered of particular significance due to their proximity to the headwaters and the sacred springs and for the spiritual and cultural connections associated with the Belubula River's upper catchment which is in addition to the general importance of waterways to Wiradjuri people.

217    In relation to the threat question under s 10(1)(b)(ii) of the Act, the Minister was satisfied that the construction of the tailings storage facility would impact the Belubula River, its headwaters and springs in a manner inconsistent with Aboriginal tradition in the following ways:

(a) it would cause physical damage to the Belubula River, its headwaters and springs through the construction and use of the tailings storage facility;

(b) irreversible damage to the Belubula River headwaters would remain, despite the proposed restoration of the mine site;

(c) this damage of the connection between the river, headwaters and springs would cause a disruption of the landscape from the Blue Banded Bee Dreaming and therefore severance of tradition.

218    While the s 10 report was considered by the Minister, it was expressly noted that “the reporter's conclusions did not have the benefit of information submitted by parties after the report was finalised”.

219    It is apparent that, in relation to the question of whether the Blue Banded Bee Dreaming story constituted a new application, the Minister’s October statement adds very little, if anything, to what was said in the Explanatory Statement. The Dreaming story formed a central and material reason for the Minister’s satisfaction of both the character question and the threat question. As will become clear, the Minister’s position on ground 1(a) would not be advanced even if Minister’s October statement were admitted into evidence.

Did the Blue Banded Bee Dreaming story constitute a new s 10(1) application?

220    The contest in this respect on ground 1(a) narrows to the question of whether the introduction on 1 and 6 December 2023 of the Blue Banded Bee Dreaming story constituted a new s 10(1) application. As Black CJ said in Tickner v Chapman (see above at [122]), the application defines the scope of the Minister’s powers, including the making of a declaration. As Kiefel J explained in the same case (see earlier at [129]–[130]), such a consequence follows as a matter of construction from the description of the application in s 10(1)(a), when read with s 3(2) and the definitions in s 3, and also from the very purpose of the notification process to solicit representations that will inform the determination to be made by the Minister under s 10(1).

Submissions

221    LFB submitted that the Blue Banded Bee Dreaming story was a wholly new claim that was made well after the reporter had delivered her report. It was submitted that a new report was required under s 10 so that the Minister had the benefit of the reporter’s view on the claim and analysis of representations made in relation to it (including those made by OLALC representatives).

222    The Minister (joined by WTOCWAC) submitted that it was not a new application. Instead:

(1)    The application identified the area to be protected as including the Belubula River and its headwaters and tributaries; that the proposed mine project footprint area was “an important cultural landscape”; and that the area had particular significance, in part, because of “[i]ts spiritual connection to” the river and its headwaters. Ms Reynolds also referred to the “tangible and intangible cultural values of the Belubula River and its headwaters to the Aboriginal community” and that the river “has a significant connection and meaning for Wiradjuri people”. It was also submitted that the additional material relied on in support of the application made repeated references to the significance of the river to the Wiradjuri people, including as the location of Dreaming stories. The basis of the application was that there were multiple such stories.

(2)    Repeating what was set out in the application itself, the s 10 public notice referred to the applicant’s claim that the application area is of particular significance, in part, because of “[i]ts spiritual connection to the Belubula River and its headwaters”.

(3)    Anyone who saw the public notice would have been under no doubt that the type of information that was being sought, or the type of consultation, was in respect of those types of Dreaming stories which are connected to the river and its headlands in respect of the particular geographical area.

(4)    The reporter had recognised the “spiritual connection to the Specified Area”, and its part in the “cultural landscape”, but ultimately concluded that there was insufficient current evidence to establish the particular spiritual significance.

(5)    There was no change in the area to be protected or the identification of the particular significance of the area when the further s 9 application was made on 21 November 2023. The transcripts of the oral submissions made on 1 and 6 December 2023 in support of the further s 9 application, but then relied on for the extant s 10 application, that referred to the Blue Banded Bee Dreaming story for the first time, were made in support of the same claim of particular significance set out in the s 10 application. While the s 10 application did not refer specifically to the Blue Banded Bee Dreaming story, it did refer to many Dreaming stories following the river’s path.

(6)    The new information “only gave content to one of the bases of the applicant’s claim why [the] particular area is a ‘significant Aboriginal area’” and, as the Department had indicated in its analysis (see above at [196]–[197]), the Blue Banded Bee Dreaming “was considered, not as a ‘new claim’, but as a ‘further limb’ or ‘subset’ of Ms Reynolds’ claim in her application about the spiritual connection to the Belubula River, its headwater and springs”. It was simply further evidence detailing the cultural significance of the river and its headwaters that was referred to in the s 10 application, and only one of a number of significant Dreaming stories in support of that application. The new information neither changed the area to be protected nor the purpose of the application.

223    Similarly, WTOCWAC submitted that the Blue Banded Bee Dreaming story was one of a series of creation stories shared during the oral interviews, and that the sharing of those stories “expanded and detailed those aspects of the application that referred to the significance of the Belubula River to Wiradyuri people and the Dreaming or creation stories and songlines that travelled along or related to the river”. Consequently, the information about the Blue Banded Bee Dreaming story was not a new application.

224    Some significance was also placed by counsel for WTOCWAC at the hearing on the fact that the Blue Banded Bee Dreaming story was disclosed in light of the s 9 application and that the Court must be persuaded not only that the Blue Banded Bee Dreaming story was sufficiently different to the s 10 application to constitute a new application, but also that it was sufficiently different to the further s 9 application. In my view, that does not follow. What impact the Blue Banded Bee Dreaming story had for the scope of the s 9 application is not a question that needs to be determined. The relevant question is how the revelation of that story impacted the s 10 application once Ms Reynolds sought to rely on it for that application.

225    It was also submitted by WTOCWAC that it would be incongruous with the legislative scheme, particularly s 10(1)(d) of the Act, if any piece of evidence in support of an application given after a reporter provided their report, that expanded or detailed the information provided in the application, required a new or amended report. That, it was submitted, would render the Minister’s task unworkable.

Consideration

Not all additional information results in a new application

226    It is convenient to take this last submission first. I accept that not every piece of additional information provided to the Minister would result in a new application under s 10(1). So much was accepted by Griffiths J in Onus v Minister for the Environment [2020] FCA 1807; 246 LGERA 340 at [85]. It must be an assessment on the facts in each case: see at [79].

227    In Onus, the s 10(1) application concerned the effect that the construction and alignment of a section of the Western Highway would have on an area which was said to have particular significance for Aboriginal people. There was also a claim for a declaration under s 12 to protect six trees. The two applications were related in that the significance of the trees was relevant to the s 10 application. In relation to the s 10 application, the Minister was satisfied that the application area was a significant Aboriginal area that was under threat of desecration or injury, but proceeded to consider other matters relevant to the exercise of the residual discretion, including the extent to which the area would be protected under State law and undertakings given by Major Road Projects Victoria (MRPV) to protect five of the six trees.

228    Griffiths J rejected a ground that sought to impugn the declaration on the basis that the Minister erred by not commissioning a further report under s 10(1)(c) when the Minister received information about the MRPV undertaking to protect the trees. It was submitted that the new information was a fundamental change that rendered the original report no longer relevant. His Honour accepted the Minister’s submission that the applicant’s position was inconsistent with various aspects of the statutory context, which included the procedural fairness obligations owed by the Minister and the power in s 13(3) of the Act enabling consultation. His Honour concluded that “the Act recognises various ways by which the Minister can obtain information relevant to the Minister’s decision-making task from various sources and need not obtain a further s 10(4) report in the events that occurred here”: at [81].

229    WTOCWAC submitted that his Honour’s reasons indicate that the statutory scheme allows the Minister to inform herself in various ways without requiring a new or amended report, and that the Minister has a wide discretion to consider information that might support the application.

230    Care must be taken with what can be drawn from Onus for the purposes of this case. First, the submission considered by his Honour was not that the application had changed as a consequence of the revelation of new information by the applicant. The application remained the same in its identification of the particular significance of the area and the threat that had been posed.

231    Secondly, it follows that his Honour was not addressing squarely an argument that the new information constituted a new application that required consideration of the observations of the Full Court in Tickner v Chapman discussed above at [123]–[131] and [134]–[135].

232    Thirdly, as LFB highlighted, the new information in Onus reduced the threat that had been identified in the application: it did not increase that threat.

233    Fourthly, it is unclear from his Honour’s reasons, or from those of Robertson J in an earlier decision relating to the same s 10 application (Clark v Minister for the Environment [2019] FCA 2027; 274 FCR 99), what view the reporter took on the threat question or what matters were taken into account. It was not a case in which the Court was considering the consequence of a different threat not considered by the reporter.

234    Fifthly, it is also unclear from the Minister’s conclusions in that case whether the new information, which was “accepted’ by the Minister (Onus at [17(6.3)]), ultimately played any part in the balancing process undertaken under s 10(1) — the Minister having been satisfied of the character and threat questions in relation to the s 10 application (Onus at [17(6.4), (6.6)–(6.7), (6.13)]), but finding that these were outweighed by “other matters” within the scope of s 10(1)(d) in the circumstances of the particular case.

235    In any event, as is evident from the observations in Tickner v Chapman, there will be circumstances where the provision of further information after the reporter has provided a report to the Minister will result in a new application. As LFB submitted, the question is one of degree. It is to be determined as a matter of substance in the circumstances of the case.

The Blue Banded Bee Dreaming story constituted a new application

236    For the reasons that follow, I accept LFB’s submission that the revelation of the Blue Banded Bee Dreaming story constituted, in substance, a new application that required the Minister to commence a fresh reporter process under s 10.

237    As explained earlier in these reasons at [93], the purpose of an application under s 10(1) is to preserve and protect a specified area from particular harm that is identified by reference to conduct that has adverse impact on Aboriginal tradition. That purpose must be stated in the notice published by the reporter, along with the matters required to be dealt with in the report. Those matters relevantly include the particular significance of the area to Aboriginal people in accordance with Aboriginal tradition and the nature and extent of the threat of injury or desecration which, in turn, will inform the character question and the threat question about which the Minister must be satisfied before making a declaration. Thus, the identification of the relevant Aboriginal tradition is central to the legislative scheme from application to declaration. As indicated above at [136(2)], that position was accepted by Burchett J and Kiefel J in Tickner v Chapman.

238    Furthermore, within that scheme, the functions of the reporter and the Minister are identified and defined by reference to the particular significance of an area in accordance with Aboriginal tradition. How the application identifies that particular significance in accordance with Aboriginal tradition will determine the scope of the statutory authority given to the reporter and the Minister.

239    Where there is a change, in substance, to the claimed particular significance of an area in accordance with Aboriginal tradition, that change necessitates the process to be restarted by the Minister, so that the purpose of the application is identified in the s 10 notice. As was explained earlier in these reasons at [102]–[115], the legislative scheme is deliberately designed to provide for the informed decision-making by the Minister through public notification and the report of a reporter. As Kiefel J said in Tickner v Chapman, the scheme is not one whereby the decision-maker makes a decision based on specified criteria without an opportunity for others to influence or persuade the Minister of their views (see above at [97]). The Minister’s decision must be informed by the representations of interested parties and the views of the reporter and, in turn, the application and its public notification must be informative of the purpose of the application.

240    The question then is whether there was a change to the particular significance of the area with the revelation of the Blue Banded Bee Dreaming story. I accept the submissions of the Minister and WTOCWAC that the application and its supporting material identified, as the Aboriginal tradition under threat, the spiritual connection to the Belubula River and its headwaters, and the cultural significance of the Belubula River and its headwaters and the “many Dreaming stories” that follow its path (see above at [138] and [143]). I also accept that the Blue Banded Bee Dreaming story was explained by members of WTOCWAC as one such Dreaming story.

241    However, to describe the Blue Banded Bee Dreaming story as giving content to, or being a subset of, the claim that was made in the application does not meet the question to be addressed. As articulated in the application and supporting material, and then identified in the s 10 notice, the Aboriginal tradition that was said to give the area particular significance was identified at a high level of generality and in an unparticularised way. It was unparticularised, not only in the sense that it did not identify the Blue Banded Bee Dreaming story as a particular Dreaming story but, crucially, as LFB submitted, the Blue Banded Bee Dreaming story gave greater particularity to the significance of the application area.

242    The conclusion that the revelation of the Blue Banded Bee Dreaming story constituted, in substance, a new application is supported by four features of the decision-making process as it unfolded.

243    First, the reporter, having considered the application as originally framed and published a notice in those terms, and having received and considered representations from interested persons on the basis of that application and notification, concluded that the Belubula River and its headwaters was of cultural significance for Wiradjuri people. Yet, the reporter concluded that the specific and particular spiritual significance of the site was “less clear” and there was a lack of evidence about the specific traditional connections to the area (see above at [155]–[162]). The application and the s 10 notice, as framed, did not reveal the particular significance of the application area.

244    This is not to say that the Minister (or the Minister’s Department) could not depart from the conclusions reached by the reporter in her s 10 report. The Minister is not bound to accept the reporter’s conclusions or recommendations. However, in the circumstances of this case, as discussed at [250]–[251] below, it becomes evident that the basis upon which the Department, in making its recommendations to the Minister, departed from the conclusion of the reporter on the character question was, in substance, the subsequent revelation of the Blue Banded Bee Dreaming story.

245    Secondly, the indications from what transpired is that there was a real chance that persons interested in the Blue Banded Bee Dreaming story, and its connection to the application area, were denied an effective opportunity during the reporter process to provide representations on that central question.

246    In this respect, the Minister submitted that interested parties might have been under no doubt that the type of information sought through the reporter’s consultation process was in respect of Dreaming stories connected with the river and its headwaters. However, it cannot be said with such confidence that interested persons would have anticipated the particular Dreaming story about the Blue Banded Bee and the particular significance it gave to the application area. As senior counsel for the Minister also recognised, by reference to what was said by von Doussa J in Chapman v Luminis (at [333]), there may be limits to what is known about sacred cultural knowledge outside the custodians of that knowledge.

247    That there was a real chance that persons interested in the Blue Banded Bee Dreaming story were denied an effective opportunity to make representations to the reporter is demonstrated by the position taken by OLALC. A submission by OLALC, provided as part of the process for the Environmental Impact Statement for the proposed mine project, had been provided to the Department as part of the application by MEMBER 1 and Mr Newman, on behalf of Ms Reynolds (see above at [24]). OLALC, itself, had expressed an interest in making a representation to the reporter, but ultimately decided not to do so (see above at [149]). OLALC’s submission in response to the Environmental Impact Statement had also been provided to the Department by LFB in response to the Round 3 consultations (see above at [44(3)(a)]). And, as has been indicated at [168] above, the Department referred to OLALC’s position on the management and protection of the Belubula River when the Department communicated its position in Round 4 that the river was not in danger. However, when put on notice of the Blue Banded Bee Dreaming story (see above at [190(2)]), OLALC sought the opportunity to make representations to the Department seeking to discredit that Dreaming story.

248    The WTOCWAC letter of 6 March 2024 (see above at [191]) then challenged the evidence given by OLALC and indicated that many members of the Aboriginal Community in Orange, Lithgow, Blayney, Bathurst and surrounding area did not agree with what members of OLALC had said. The existence of the Blue Banded Bee Dreaming story was evidently (a) of particular interest and concern to members of Aboriginal communities and (b) the subject of dispute and disagreement.

249    While LFB and OLALC were given an opportunity to address the Blue Banded Bee Dreaming story during the Department’s consultation Rounds, as Burchell J said in Tickner v Chapman (at 482), the “statutory notice was not designed for them alone”. Because the process was not restarted, the competing views (including within and between Aboriginal communities) on the Blue Banded Bee Dreaming story were not sought, provided or accounted for in the reporter process. The reporter was thereby denied the opportunity to consider those representations and, further, the Minister was denied the opportunity to consider the reporter’s views about the Blue Banded Bee Dreaming story and any representations.

250    Thirdly, the Blue Banded Bee Dreaming story was central and material to the Department’s assessment of the character and threat questions. The Department’s position on its proposed recommendation to the Minister had shifted over the initial Rounds of consultation (see above at [165]–[166]). However, the last proposed recommendation communicated on 19 April 2023 prior to the revelation of the Blue Banded Bee Dreaming story in December 2023 (see above at [167]) had maintained the position that there was insufficient evidence for the Minister to be satisfied that the Belubula River headwaters and springs are significant Aboriginal areas within the meaning of the Act.

251    The decision by the Minister on 21 December 2023 to reject the further s 9 application had communicated the Minister’s acceptance that parts of the application area are significant Aboriginal areas (see above at [180]). The analysis provided to the Minister supporting that recommended position had expressed disagreement with the reporter’s conclusion that the connection of the area to Aboriginal people was not clearly supported by the evidence, and put forward the view that there was credible evidence, including the telling of the Blue Banded Bee Dreaming story, to support that connection. The Department also noted that, while the reporter’s conclusion was that the particular significance was less clear, the Blue Banded Bee Dreaming had been provided subsequent to the reporter’s report (see above at [184]–[187]). The centrality and materiality of the Blue Banded Bee Dreaming story is also evident in the analysis attached to the second decision brief (and presumably the first decision brief as well) recommending that the Declaration be made (see above at [196]–[201]). The revelation of that story was, therefore, central and material to the Department’s recommendation to the Minister.

252    Fourthly, the Explanatory Statement accompanying the Declaration places substantial reliance on the Blue Banded Bee Dreaming story in reaching conclusions on the character and threat questions. And, even if I were to admit the Minister’s October statement as evidence of the Minister’s reasons, the conclusions reached in that document are consistent in this respect with what was set out in the Explanatory Statement.

253    The result was that the legislatively mandated process of public consultation and reporting was geared towards responding to a general and unparticularised claim about an Aboriginal tradition and its connection to the application area. That framed the call for representations from interested parties and the representations that were provided. As is evident from the reporter’s conclusions, it limited the scope of her inquiry and the recommendations she gave. The utility of that process, as intended by the Parliament, to inform the Minister’s decision was confined by the scope and generality of the application. From there, the impact of the Blue Banded Bee Dreaming story on the Department’s analysis and recommendations, and the decision on the further s 9 application and the making of the Declaration, is clear.

254    In my view, it could not be said that the public were given an effective opportunity to address the more specific and particular claim for protection, or that there was an adequate public ventilation of the particular significance of the application area or the threat posed to it. The reporter was denied the opportunity to consider representations on the particular significance of the application area and the Minister was, thereby, denied the opportunity to consider the reporter’s report on that central and material matter.

255    In summary, the revelation of the Blue Banded Bee Dreaming story, in substance, constituted a different and new application for the purposes of s 10(1). While the Minister could act on the new information in determining the further s 9 application, once it was requested by Ms Reynolds that the information be applied to the s 10 application, the Department should have advised the Minister that this constituted a new s 10 application and that the reporter process had to recommence.

Other submissions by the Minister

256    In reaching this conclusion, I accept the Minister’s submission that the test to be applied in determining whether there is a new application is not that there has been new information which changed the mind of the decision-maker. I also accept WTOCWAC’s submission that not every piece of new evidence after the reporter’s report, that expands or details the information provided in the application, requires a new or amended report. To so hold would be to elevate particular factual circumstances to the level of an overriding test without scrutinising further how those factual matters bear on the scope of the application in its description of the particular significance of the area in accordance with Aboriginal tradition. The test to be applied is one of substance that involves questions of degree and, in the present circumstances, where the new information is said to affect the character of the area's significance, the way in which the area's significance was considered and dealt with during the decision-making process assists in revealing whether new information constitutes a new application.

257    In reaching my conclusion, I also accept what was said by the Minister and WTOCWAC that Tickner v Chapman is not on all fours with this case. The new information in that case, which led to the observations that there was a new application, came from a distinct group concerning a different Aboriginal tradition in relation to an expanded area. However, that does not mean that there has not been a change in this case to the particular significance of the area in accordance with Aboriginal tradition. The legal principle is not to be found in a combination of the particular features in Tickner v Chapman that led to the observations that there was, in substance, a new application in that case. It is to be determined as a matter of substance in the circumstances of the case and informed by the purposes to be achieved by the legislative scheme that includes the role of the reporter, a role which, as previously discussed above at [102]–[114], is integral to the process in s 10 of the Act.

258    That is not to suggest that the original application was invalid because it identified the Aboriginal tradition in more general and unparticularised terms. If the Blue Banded Bee Dreaming Story had not been revealed, the decision-making process would have proceeded on the original application. However, once the Aboriginal traditions and their connection to the application area were more clearly particularised so as to identify the area’s significance in a way that might not have been evident to interested persons or the reporter during the reporting process, that became a new application that necessitated the reporter process to be restarted. Only then could the purposes of effective public consultation and the reporter’s central function within the legislative scheme be fulfilled.

259    The Minister submitted that a requirement for the Minister to recommence the process, with the consequence that sensitive information about Aboriginal tradition might be notified to the public, would be inconsistent with the policy of the Act with respect to “preservation, and the danger of offending traditions of Aboriginal people by disclosing beliefs of a particular character to the world at large” (quoting from Black CJ in Tickner v Chapman at 461). That submission is inconsistent with the position taken by Burchett J and Kiefel J in Tickner v Chapman that the revelation of the sensitive information in that case would have constituted a fresh application (see above at [126]–[136]).

260    However, the Minister’s submission in this respect requires a more fulsome response and, as LFB submitted, must take account of the remainder of the sentence quoted from Black CJ in Tickner v Chapman (at 461) that the policy objective of protecting sensitive and sacred information about Aboriginal tradition must be “balanced against the policy of the Act with respect to the reporting process”.

261    The purposes of the Act are to preserve and protect from injury or desecration areas and objects that are of particular significance in accordance with Aboriginal tradition: s 4. The way in which those traditions are to be protected is through the decision-making process prescribed by the Act. As was the case in Tickner v Chapman and in this case, the traditions to be protected may well include traditional or customary norms for the secrecy and non-disclosure of sensitive and sacred information to the world at large. While the legislative scheme does not provide expressly for ways in which those traditional or customary norms of secrecy and non-disclosure might be respected and protected, it does not prohibit such steps being taken. The powers and functions conferred on the Minister and the reporter carry with them powers to take steps that are “necessary”, in the sense of being “reasonably required” to ensure the effective exercise of their powers and functions under the Act: see, eg, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 at [40] (Kiefel CJ), [52] (Gageler J), [114]–[115], [118] (Keane, Nettle and Gordon JJ).

262    In my view, those steps can include the implementation of measures to protect sensitive and sacred information if that is reasonably required for the effectiveness of the decision-making process. Whether such measures should be taken by the Minister or reporter and, if so, what the content of such measures should be in the circumstances of a particular case, must, as Black CJ recognised, be balanced against the need for a process that informs interested persons of the application that has been made, and allows a sufficient opportunity for those interested parties to contribute to the function of the reporter and the decision of the Minister. Those judgements are to be made by a reporter or the Minister in accordance with law on the facts in a particular case.

263    The short point in response to the Minister’s submission is that there is sufficient scope within the legislative scheme for steps to be taken by the Minister and the reporter throughout the process to ensure that traditions and beliefs are respected and protected.

264    For completeness:

(1)    It is not evident that a requirement that the process be recommenced upon the revelation of the Blue Banded Bee Dreaming story was “wholly impractical”, as suggested by the Minister. There may be additional costs and further delay, but that is the consequence of a legislative scheme deliberately designed to follow a particular decision-making process to achieve particular objects of community-inclusive and informed decision-making. Such costs and delay might be minimised by the Minister nominating the same reporter to consider the fresh application: see Tickner v Chapman at 459 (Black CJ); 493 (Kiefel J).

(2)    There was some disagreement about the meaning to be attributed to what Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said in Wilson at 19 about the obligation on the reporter to observe procedural fairness requirements being “not significant”. In my view, whether it is to be understood as directed to the constitutional question to be decided in that case as to whether a Federal Court Judge can be nominated as a reporter, or as a recognition that the function of the reporter is not to operate as a substitute for the procedural fairness requirements owed by the Minister (Minister v Western Australia at 52–53), I do not understand those comments to diminish the central importance of the reporter’s function in the legislative scheme as a precondition to the exercise of the Minister’s power as recognised in Tickner v Bropho, Tickner v Chapman and Minister v Western Australia. Nor is it diminished by the fact that (a) the reporter is to be regarded as “an integral part of the process of the Minister’s exercise of power” (Wilson at 18), rather than an independent arbiter; or (b) it is the Minister who ultimately exercises the “political function” to determine “the competing interests of Aboriginal applicants and of others whose proprietary or pecuniary interests are liable to be affected by the making of a declaration” (Wilson at 19). Regardless of these matters, the scope of the s 10(1) application and, consequently, the authority of the Minister to make a declaration, remains to be determined with a proper understanding of the purposes to be achieved by the reporter process.

(3)    The fact that the Department took the view that the revelation of the Blue Banded Bee Dreaming story did not constitute a new application is not a matter of relevance to the exercise of this Court’s jurisdiction.

The balance of Ground 1(a)

265    As noted in [77(2)] above, ground 1(a) was expressed in broader terms to cover the failure to treat claims made between 4 May 2022 (the date the reporter provided the s 10 report) and 13 August 2024 (the date of the declaration) as giving rise to a new application. As developed in submissions, the allegation included that the lengthy period of time between the report and the making of the Declaration, during which substantial new information was provided to the Department (including from OLALC and WVWAC), resulted in a process inconsistent with what Parliament intended. In oral submissions, it was also contended in the alternative that the way that the process unfolded meant that there was not at law a report of the kind for which s 10(4) provides. However, it is not necessary to address ground 1(a) any further than what I have done because any other failure giving rise to error would result in the same outcome.

OTHER GROUNDS

266    My conclusion on ground 1(a) is sufficient for the purposes of dealing with LFB’s application. In light of the conclusion that the decision-making process was fundamentally flawed because of the failure to treat the revelation of the Blue Banded Bee Dreaming story as a new application, there is little utility in dealing with the other grounds that, on a different hypothesis, allege procedural fairness failures in the decision-making process or which involve consideration of the legal reasonableness of the Minister’s decision.

267    However, I briefly indicate my position on two other grounds that largely turn on a construction of the relevant provisions.

Ground 1A

268    Ground 1A was in the following terms:

1A.     The Declaration is invalid because:

(a)     it fails to specify a period for which it is to have effect under s 10(2) of the [] Act, and therefore a statutory pre-condition to the exercise of power was not satisfied; and/or

(b)     the report provided to the Minister as required by s 10(1)(c) of the [] Act did not “deal with … the duration of any declaration” as required by s 10(4)(f) of the [] Act, and therefore a statutory pre-condition to the exercise of power was not satisfied; and/or

(c)     the Minister failed to consider for what period the Declaration was to have effect, and therefore failed to have regard to a mandatory relevant consideration.

269    It is convenient to deal first with ground 1A(c).

Ground 1A(c)

270    If I had been required to consider ground 1A(c), I would have reached the following conclusions.

271    First, despite uncertainty in the authorities (see Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis, 6th ed, 2023) at [12.10]), the better view is that, if a statutory scheme, on its proper construction, conditions the exercise of a statutory jurisdiction to make a legislative instrument on the consideration of a particular matter, then a court on judicial review is authorised to review for validity on the basis that the consideration was not taken into account: see Eve Hemp Pty Limited v Secretary to the Department of Health [2017] FCA 1051 at [12] and [16]–[17] (Jagot J); cf Donohue v Australian Fisheries Management Authority [2000] FCA 901; 60 ALD 137 at [20] (Heerey J); Vanstone v Clark [2005] FCAFC 189; 88 ALD 520 at [106] (Weinberg J); McAdam v Victorian Fisheries Authority [2024] VSC 702 at [66] (Judd J). That is the case whether the ground is expressed in the traditional terms of a mandatory relevant consideration (see Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2014] FCA 117; 225 FCR 97 at [62] (Logan J)), or as a constructive failure to exercise jurisdiction (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [41] (Gaudron J); CD v Central Gippsland Health Service [2022] VSC 462 at [449] (Croucher J)).

272    Secondly, I would have accepted LFB’s submission that the legislative scheme is such that the Minister is required to consider the duration of the Declaration as a precondition to a valid exercise of power under s 10(1). As I explained earlier in these reasons at [16]–[17], [98(4)], and [115], the duration of a s 10(1) declaration is an integral feature of the legislative scheme. It is a precondition to the Minister’s power to make a declaration that the Minister has received and “considered” a s 10 report. The report must deal with the duration of the declaration, alongside other matters including the nature and extent of the threat, and the prohibitions and restrictions to be made. The s 10 notice identifies the matters to be dealt with in the report and interested persons can furnish representations which must also be considered by the Minister. It would be expected that interested persons and, in turn, the reporter, might consider a mix of considerations directed to the nature and extent of the threat, the types of measures to be put in place, and their duration: see, eg, Tickner v Chapman at 481 (Burchett J).

273    The duration thereby becomes an integral part of the balancing exercise that the Minister must undertake under s 10(1) when determining whether the discretion should be exercised to make a declaration and, if so, on what terms. If the discretion is exercised, it is necessarily premised on the Minister’s satisfaction of the character question and the threat question, and the declaration must contain provisions for the protection and preservation of the area (s 11(b)) and its duration (s 10(2)) which each reflect the end-product of a balancing exercise.

274    Accordingly, the requirement to consider the duration arises because (a) the Minister must “consider” the report which shall deal with the duration of a declaration, and/or (b) independently of that obligation because of the centrality of the duration of the declaration to the legislative scheme as revealed in s 10(2).

275    In relation to the first of these bases, the Minister relied on Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; 282 CLR 1 to support the proposition that the Minister is only required to consider the report and the representations as a whole and is not required to form a state of satisfaction regarding any of the matters set out in s 10(4). As LFB submitted, the statements in McQueen concerned the obligations of the relevant Minister to consider representations made by a person whose visa has been cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). Those representations are made at the invitation of the Minister and may inform the Minister’s decision whether to revoke the original cancellation decision. It was in that context that Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ said that “no particular statement in the representations given should be characterised as a mandatorily relevant consideration”: at [6(c)]. As LFB submitted, that context is very different to the current legislative scheme that requires a s 10 report to deal with the duration of any declaration and requires the Minister to consider the report.

276    In any event, as I have explained, the requirement can be seen as arising under s 10(2) independently of the Minister’s obligation to consider the s 10 report. Accordingly, I would not have accepted the Minister’s submission that the failure to consider the duration of a declaration could not impugn the validity of the Declaration.

277    Thirdly, I would have accepted the Minister’s submission that the Act does not require the setting of a finite period for which a declaration can have effect, and that it is permissible for the relevant Minister to set an indefinite period. As a matter of ordinary language, the word “period” is capable of including an indefinite period: see, by analogy, Attorney-General v Van Dessel [2006] QCA 285; [2007] 2 Qd R 1 at 5 (Jerrard JA), 10 (Mackenzie J). The legislative scheme confirms that to be the case. The very purpose of the Act is to preserve and protect areas and objects that are of particular significance in accordance with Aboriginal tradition: s 4. By its very nature, the subject matter of the legislative scheme gives rise to the need for a declaration to be capable of providing enduring protection. As the Minister contended, that purpose is not, necessarily, “temporally confined”. This is not a case like Van Dessel where the respective use of the word “period” in the relevant provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) led to the inescapable conclusion that a period was to be measured by a finite portion of time.

278    LFB’s submission that the “period” must be finite is not assisted by the terms of ss 9(2) and 18(2)(b) of the Act. Those provisions merely demonstrate that an indefinite period cannot be specified for declarations made thereunder (recalling that these provisions concern emergency declarations). The provisions themselves qualify what otherwise would have resulted from the use of the text that replicates s 10(2). Nor does the legislative history take LFB’s position any further. Section 33 of the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth) contained a sunset clause for the operation of the Act. However, the period to be specified under s 10(2) for a declaration was not constrained by the two-year period specified in s 33, which concerned the operation of the Interim Act itself. There was nothing else in the Interim Act that placed any limits on the duration that could be specified. I do not accept LFB’s submission that, because of the sunset clause, Parliament must necessarily have intended that a declaration made under s 10 would have a fixed duration. It is quite apparent that the interim period of operation was to be overtaken in due course by comprehensive legislation: see Tickner v Bropho at 221–222 (French J).

279    Further, the repeal of s 33 could not possibly have affected anything done under s 10(1): see s 8 of the Acts Interpretation Act 1901 (Cth) (as at 25 June 1984). When repealing s 33 of the Interim Act, the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Amendment Act 1986 (Cth) had no operative provisions dealing with declarations made under the Interim Act and, while “[t]he effect of [the Amendment Act was] to make permanent an interim scheme to protect the heritage of Aboriginals and Torres Strait Islanders” (Second Reading Speech, Commonwealth, Parliamentary Debates, House of Representatives, 16 April 1986, 2419), there was no suggestion in the Second Reading Speech that any declaration made under the Interim Act was considered to be limited to a two-year period corresponding with the sunset clause. In short, there is no basis for the position that the Interim Act constrained the duration of a declaration to a two-year period.

280    Fourthly, on the basis of the arguments put by the Minister, I would not have been satisfied that the Minister considered the duration of the Declaration either as a matter dealt with in the s 10 report, or independently as required as a statutory precondition to the making of the Declaration. In either case, the Minister was required to engage in an active intellectual process (in relation to the obligation to consider in s 10(1)(c), see Tickner v Chapman at 462–463 (Black CJ), 495 (Kiefel J); in relation to the independent obligation to consider the duration as a mandatory consideration, see Stambe v Minister for Health [2019] FCA 43; 270 FCR 173 at [110]–[111] (Mortimer J, as her Honour then was)).

281    There are difficulties with the Minister’s submission that the Minister considered the duration of the Declaration. The duration is not included in the Declaration itself. Prima facie, that is indicative of the fact that it was not considered. Additionally, the Minister did not give evidence and, accordingly, there is no direct evidence of what was considered before the making of the Declaration.

282    In written submissions, the Minister contended that the duration was considered because it was addressed in (a) representations to the reporter and the reporter’s report which were considered by the Minister; and (b) submissions received during the procedural fairness consultations. The Minister could only point to the following as clear references to the duration of the Declaration in these documents:

(1)    A representation of MEMBER 1 to the reporter that “[t]he duration of the declaration should be ongoing”;

(2)    The s 10 report noting that: (a) it identified that the application did not address duration but could be taken to be an implied request for a “duration in perpetuity”; (b) only MEMBER 1 had made a representation to the reporter as to duration; and (c) the reporter observed that “the lack of discussion by any of the parties of the duration of a declaration indicates an assumption that a declaration would be in perpetuity”;

(3)    LFB’s comments on the findings and conclusions in the s 10 report, provided to the Department on 24 June 2022, that LFB understood “that the Applicant has applied for a declaration which would remain in force indefinitely”; and

(4)    LFB’s submission on 11 June 2024 that it could “only assume that any declaration would be in force at least for several years if not indefinitely”.

283    However, it is clear that the Minister did not, in either the Explanatory Statement or the Minister’s October statement (if that document were admitted), make express reference to any such statements about the intended duration of the Declaration. And, as Mortimer J said in Stambe, what the Minister “read” and what the Minister “considered” “may not be the same conduct”: at [90].

284    In my view, and subject to what will be said below, the highest an inference can be drawn on the evidence is that the Minister adopted the assumption of indefinite duration made by others rather than applying her own independent mind to the question of duration for the purpose of exercising the discretion in s 10(1): Tickner v Chapman at 476 (Burchett J), 495 (Kiefel J).

285    On that basis, I would have reached the view that the Minister had failed to consider, in the relevant sense, the duration of the Declaration and, further, that the failure to do so resulted in invalidity because consideration of the duration of the Declaration was a precondition to a valid exercise of the Minister’s jurisdiction.

286    However, having said that, it was assumed by the parties that the duration of the Declaration was not set out in the Declaration itself or in the Explanatory Statement. That is true, however, it might be said that the Explanatory Statement, by implication, evidenced an acceptance by the Minister that the Declaration would be required to operate indefinitely. The Explanatory Statement stated that (emphasis added):

The Minister also accepts that the proponent’s planned rehabilitation of the mine site does not adequately address the restoration of damage or injury to the Belubula River, its headwaters or springs, as it would still result in permanent realignment of the river headwaters and damage to the springs. The Minister considers that the permanent realignment of the Belubula River would effectively destroy the area that is considered to be the headwaters, and that this would damage the sacredness of the watercourse as well as disrupt the connection between the watercourse and the Blue Banded Bee Dreaming and traditional ceremonies that were historically conducted in the area.

287    The identification of the threat of permanent injury might be seen, by implication, as necessitating a Declaration that was intended to operate for an indefinite period. If that were the case, then it might be said that there is evidence in the Explanatory Statement that the Minister considered that the indefinite duration of the Declaration was integral to the protection to be given to the area. This was not an argument that was advanced on behalf of the Minister and, in the absence of submissions from the parties, I reach no concluded view on that point.

Ground 1A(a)

288    If it were necessary to consider ground 1A(a), I would also have come to the conclusion that LFB established invalidity on the basis of that ground. That is because I would have accepted LFB’s submission that a failure to “specify” the duration resulted in the Declaration’s invalidity. That conclusion involves the acceptance of two propositions.

289    First, that the statement in s 10(2) that a declaration has effect for such period “as is specified” in the declaration imposes a requirement to state in explicit terms the duration of the declaration in the instrument. That is the plain ordinary meaning of the word (see Harofam Pty Ltd v Scherman [2013] VSCA 104; 42 VR 372 at [12]–[14] (Nettle AP, Neave JA and Garde AJA) and the authorities cited therein; see also Jolly v Yorketown District Council (1968) 119 CLR 347 at 351 (Barwick CJ and Owen J), 352 (Kitto J)). In my view, that conclusion is supported by the centrality of the duration of the declaration to the legislative scheme and the punitive consequences and possibility of injunctive relief that arise from non-compliance with the instrument.

290    In this respect, the Minister submitted that there is no requirement to state an indefinite period in a declaration because a declaration comes into operation on the day after the day of its registration (or such later time as is specified) (s 14(1)(b) of the Act) and continues, as a legislative instrument, until it is repealed or sunsetted. In support of the submission, the Minister referred in written submissions to a presumption of continuance attaching to delegated legislation and, then, in oral submissions to the Legislation Act 2003 (Cth). It was submitted that that explains why s 18(2)(b) of the Act, which deals with emergency declarations that are not legislative instruments (s 18(2B)), is expressed in the mandatory terms that a declaration of that kind “shall specify the period” (emphasis added). Thus, it was submitted, the absence of the same mandatory language in s 10(2) was deliberate.

291    There are difficulties with this submission which were not sufficiently addressed by the Minister:

(1)    As LFB submitted, the enactment of s 10(2) of the Act predated the Legislation Act and, accordingly, how precisely the Legislation Act might provide context for the construction of s 10(2) was not clearly explained. While the Minister suggested that equivalent provisions appeared in the Acts Interpretation Act 1901 (Cth), no such provision was identified.

(2)    Section 50 of the Legislation Act provides for the automatic sunsetting of legislative instruments. It has not been suggested that the Minister intended that the Declaration would only operate for the sunset period.

(3)    It is arguable, although it is unnecessary to decide, that s 54(2)(a) of the Legislation Act applies. That provision states that “[t]his Part [Part 4—Sunsetting of legislative instruments] does not apply in relation to a legislative instrument if an Act provides, or has the effect, that this Part does not apply in relation to the instrument” (emphasis added). If the Act, by operation of s 10(2) providing that a declaration has effect for such period as is specified in that declaration, has the prescribed “effect” so that s 54(2)(a) of the Legislation Act is engaged, and Part 4 thereby does not apply to the Declaration, that then requires a construction of s 10(2) unassisted by the Legislation Act.

(4)    The operation of the presumption of continuance was not explored by the Minister in any detail. Even if it operates as a presumption that delegated legislation “remains in force and has effect until revoked or declared invalid by a court” (R v Law [2008] NTCCA 4; 23 NTLR 1 at [33] (Martin (BR) CJ)), nonetheless it would have to be reconciled with the requirement in s 10(2). In my view, a presumption that a declaration would operate indefinitely sits uncomfortably with the central place of the intended duration of a declaration in the legislative scheme.

292    If the Legislation Act is inapplicable and any presumption of continuance is irreconcilable with the requirement in s 10(2) to specify the duration in the declaration, the Minister’s submission reduces to a difference in the choice of language used across different provisions in the Act. The difference in drafting can be explained by the different architecture of the respective provisions and, in any event, the inference that I was invited to draw from the differential drafting would not overcome the centrality of the duration of a declaration in the legislative scheme and the ordinary meaning of the word “specified”.

293    Secondly, it involves acceptance of the proposition that a failure to comply with the requirement to specify the duration in the Declaration resulted in invalidity. Whether that is so depends on:

whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91] (McHugh, Gummow, Kirby and Hayne JJ).

294    That Parliament intended such an outcome would prima facie follow from the integral place of a declaration’s duration in the legislative scheme and also, importantly, the consequences of contravening a requirement in a declaration. A declaration should only be capable of imposing penal consequences and give rise to injunctive relief where the temporal span of the declaration is clearly stated in the instrument. That conclusion is also supported by the fact that the Act has provisions that expressly provide that validity is not imperilled by a failure to comply with certain statutory prescriptions: see ss 13(4), 14(3), 19(2). That is, where Parliament intended that invalidity is not to follow from statutory non-compliance, it said so expressly.

295    However, the Minister submitted that, even if s 10(2) required the Minister to expressly state the duration in the legislative instrument, a contravention of s 10(2) should not result in the invalidity of the declaration as a whole. The Minister relied on X Corp v eSafety Commissioner [2025] FCAFC 99; 311 FCR 205 (Murphy, Charlesworth and Horan JJ) and Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 to support the submission that it is permissible for the Court to have regard, in the circumstances of a particular case, to the consequences of the breach of s 10(2) in determining whether non-compliance results in the invalidity of a declaration.

296    I will start with SZIZO. Provisions of the Migration Act 1958 (Cth) regulated the way in which the Refugee Review Tribunal communicated with applicants. Where an applicant appointed a person as an “authorised recipient”, then the Tribunal was required to give those documents to the authorised recipient instead of giving them to the applicant. In the case before the Court, the Tribunal had failed to give the authorised recipient a notice inviting the applicants to attend a hearing. However, no “adverse consequences” arose for any of the applicants: “[a]n effective response was made to the notice and all the [applicants], including the authorised recipient [who was one of the applicants], attended the hearing”: SZIZO at [2].

297    The Court (French CJ, Gummow, Hayne, Crennan and Bell JJ) considered, in accordance with the approach in Project Blue Sky, whether it was a purpose of the legislation that, despite the fact that all the applicants (including the authorised recipient) appeared at the hearing, gave evidence and presented arguments, the Tribunal lacked jurisdiction because of non-compliance with the notice requirement. The Court considered that the purpose of the general notice provision was to allow the applicants adequate time to prepare for the hearing. The provision requiring the nomination of a recipient recognised that some applicants might not understand the notice or might need assistance in preparing for the hearing. The provisions together worked to ensure that an applicant received “timely and effective notice of the hearing” and facilitated “the conduct of a procedurally fair hearing”: SZIZO at [34].

298    However, the “manner” of achieving that objective “was not an end in itself”: at [34]. Their Honours were of the view that an assessment of whether Parliament intended that the departure from the prescribed steps resulted in invalidity could not be undertaken “without consideration of the extent and consequences of the departure”: at [35]. Having reached the conclusion that the applicants were not denied natural justice, there was no invalidity as a consequence of a failure to comply with the statutory requirement: at [36].

299    In X Corp, an infringement notice issued under s 103(1) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) did not specify the place of the alleged contravention as required under s 104(1)(e)(iii) of that Act. A Full Court of this Court upheld the decision of the primary judge that a contravention of the requirement did not result in the invalidity of the infringement notice. The Full Court agreed with the primary judge’s application of SZIZO, namely that:

(1)    SZIZO stood for a general proposition that non-compliance with a condition on the exercise of a power could lead to invalidity in some cases, but not others, and that it may be the purpose of an empowering statute to invalidate certain exercises of power by reference to “the extent and consequences of the departure” from the statutory requirements: at [138];

(2)    That there was no prejudice suffered by non-compliance, including because the place of the alleged contravention was not a factor affecting X Corp’s understanding of the infringement notice, the acts or omissions upon which it was based or consideration of its options: at [136]; and

(3)    An infringement notice does not create an enforceable liability, but offers an alternative avenue for discharging civil or criminal liability: at [136].

300    Furthermore, the Full Court rejected an argument that the primary judge erred by failing to give effect to Parliament’s intent that the time and place of an alleged contravention are “essential factual ingredients” that the recipient must be given. The Full Court said that it was (at [143]):

not at all apparent that the place of a contravention is an “essential factual ingredient” in the sense that its inclusion in an infringement notice is an inviolable restraint on the power conferred under s 104(1)(e)(iii) in all cases. The elements of a contravention of s 57(2) of the Online Safety Act do not include any physical or fault element referable to a place, nor is place a discrimen that enables a recipient to identify duplicity or other unfairness in the formulation of a charge.

301    Further, in the case where a contravention was constituted by an omission, “the place of the omission could not be said to inform the recipient’s decision as to what options it might exercise or compromises it might make in response to an infringement notice”: at [144]. As the primary judge had said, X Corp had all the information it needed to consider the allegation made against it in the infringement notice. Moreover, the Full Court did not accept that the primary judge had applied a uniform “possible prejudice” standard irrespective of the particular mandatory requirements. “Analysis of the other provisions”, it was said, “may gave rise to different considerations”: at [145]–[146].

302    The starting point in the Minister’s submissions appeared to be that SZIZO had endorsed an approach where invalidity from non-compliance could arise in one case, but not another, depending on the consequence of the breach in a particular case. Next, considering the consequences involves a consideration of the respective prejudice that might arise from invalidity in the individual case. In that way, Parliament’s intention as to the consequence of non-compliance can be ascertained. Next, when making a declaration, the Minister has been satisfied of the character question and the threat question, and has taken into account other matters considered to be relevant to the exercise of discretion. In those circumstances, the interests of the applicant for the declaration will be prejudiced by the invalidity of the declaration. By contrast, LFB was given multiple opportunities to address the question of the duration, failed to do so, and assumed that the period would be an indefinite one. All parties in the process understood that if the Declaration were made it would prevent the proposed mine project from going ahead. It could not be said that LFB suffered any prejudice.

303    LFB submitted that the Declaration affected a number of parties, including the landholder, third parties who use the land, and Aboriginal groups who held a different position. It would be an infringement on all their rights and interests if the Declaration operated by default indefinitely. By contrast, if the Declaration were held invalid for non-compliance, the s 10 applicants could seek an urgent s 9 declaration whilst the s 10 application is being reconsidered. Further, what was described as the X Corp approach can be explained as a particular application of Project Blue Sky. That is, if a provision is designed to protect the interests of one person, and that person’s interests are prejudiced by non-compliance, then that leads to a conclusion that Parliament intended invalidity. However, it was submitted that this case is different because it involves the interests of many parties and, accordingly, the X Corp approach could not be applied in this case. Furthermore, because there is no evidence that the Minister considered the duration of the Declaration, there is no basis to know whether any third-party interest has been affected.

304    Not without some difficulty, if I had needed to decide the issue, I would have concluded that Parliament’s intention is that a failure to comply with s 10(2) results in invalidity (at least) in the circumstances of this case. The starting point must be the importance of the requirement in the legislative scheme. Only then can the relevant prejudice be identified which informs the question of legislative intention. As I have explained above, an assessment of the duration of a s 10 declaration is an integral feature of the legislative scheme. As a matter of substance, the requirement in s 10(2) to specify the duration in the legislative instrument cannot easily be divorced from the purpose it serves.

305    As mentioned earlier at [281], that the duration has not been specified in the Declaration is indicative that the duration was not considered by the Minister. The result is that the proscription of conduct, non-compliance with which results in penal consequences and the possibility of injunctive relief, has been imposed by legislative instrument without consideration by the Minister of a central feature required within the scheme.

306    This is not a case like SZIZO where the provision in question was a statutory reflection of a natural justice requirement. Accordingly, it was not clear to me how the Minister’s submission, directed to LFB having been afforded procedural fairness, relevantly bears on Parliament’s intention of what consequences arise from non-compliance. Once the centrality of the duration to the legislative scheme is appreciated, and the conclusion is reached that the Minister failed to consider the duration, it is also unclear how LFB’s understanding of what the position would be, once a declaration is made, is relevant to that legislative intention.

307    In any event, as indicated earlier at [282(4)], the evidence shows that in a submission to the Department on 11 June 2024, LFB’s precise statement was that it “can only assume that any declaration would be in force at least for several years if not indefinitely”. That position falls short of the Minister’s suggestion that LFB should be taken to have understood what the position would be.

308    I am mindful that invalidity of the Declaration will require the s 10 process to be further protracted. That is deeply regrettable for Ms Reynolds and the Wiradjuri members of WTOCWAC who will not enjoy the benefit of the Declaration. As a matter going to the relevant legislative intention, I accept that the prejudice to the interests of Ms Reynolds and the Wiradjuri members of WTOCWAC must be considered. If I had not taken the view that the duration of a declaration is integral to the Minister’s power, or if I were satisfied on the evidence that the Minister actually considered that matter, then a different outcome might have followed. However, on the conclusions I have reached and the outcome of my decision, Ms Reynolds retains her entitlement to prosecute her s 10 application, and her claimed interest remains to be vindicated through a valid process that will be determined by the Minister.

309    While I accept that the Minister has a power to vary the Declaration at any time (s 13(6) of the Act), that could only be of assistance in rectifying the consequences of non-compliance with s 10(2) if there were evidence of an intended duration. That is not this case.

Ground 1A(b)

310    In relation to ground 1A(b), I note that the obligations on the reporter are expressed in terms of giving “due consideration to any representations” and “deal[ing] with” the matters in s 10(4) (including the duration of “any” declaration: s 10(4)(f)). In circumstances where the reporter (a) understood that interested persons had assumed an indefinite duration and (b) recommended against the making of a declaration, it is difficult to see how the reporter did not give “due consideration” to the representation as to duration or did not deal with the duration of “any” declaration (given that no declaration was to be recommended). Consequently, if I were required to deal with this ground, I would not have been satisfied that it had been made good by LFB.

Ground 6

311    Ground 6 was in the following terms:

The result of the Minister’s exercise of the power to make the Declaration, and in particular what exact conduct is prohibited by the Declaration, is so uncertain as to render the Declaration invalid.

312    If required to consider ground 6, I would not have been persuaded by LFB’s submissions. LFB submitted that the Declaration is exceptionally vague and does not provide a high level of certainty or precision that is required by the Act.

313    In support of its submissions, LFB relied on correspondence from its solicitors to the Department’s solicitors stating that the Declaration had created a high degree of uncertainty in relation to the use of agricultural land, and in relation to the use and maintenance of a road within the declaration area, and sought confirmation that those activities were not activities likely to injure or desecrate the declaration area. Letters in response confirmed the use of the agricultural land and the road would not be prohibited by the Declaration, but no confirmation was provided in relation to maintenance of the road. Subsequently, a guidance note was issued which indicated the Department’s view that routine maintenance of the road (including the sealing of the existing road surface) by the local council were not considered to be activities that are likely to injure or desecrate the declaration area.

314    This evidence was marshalled in support of the submission that there was an unacceptable level of uncertainty in the operation of the Declaration. I admitted this evidence subject to relevance and, if admitted, it would be limited to a non-hearsay purpose. Given that LFB is under no uncertainty that its proposed mine project is covered by the Declaration, I accept the Minister’s submission that the limited use for a non-hearsay purpose leaves the Court without a factual foundation for an inference that the Declaration has created uncertainty for others.

315    However, it was also submitted that there was facial tension between what that guidance note said about the sealing of the road and the content of s 6(3)(c) of the Declaration prohibiting a person from “seal[ing] any part of the declared area, including with concrete”.

316    Assuming without deciding that LFB were able to challenge the Declaration on the basis that the Declaration was incapable of severability or disapplication to the extent of any invalidity in its application to others (LFB itself being under no uncertainty about its application to the proposed mine project), I would not have accepted LFB’s submission that the provisions are uncertain in the relevant sense to give rise to invalidity.

317    The relevant principles were discussed by a Full Court of this Court in Comcare v Lilley [2013] FCAFC 121; 216 FCR 214 (Kerr, Farrell and Mortimer JJ). Having referred to the observation of Dixon J in King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 197 that any limit on a statutory power must be derived from the statutory language, the Full Court in Lilley said [86]–[87]:

His Honour held (at 194, 196) there is no “doctrine” that certainty is a separate requirement that all forms of subordinate legislation must fulfil, a proposition endorsed by Kitto J in Television Corporation Ltd 109 CLR 59 at 71; see also Cann’s Pty Ltd 71 CLR 210 at 227. Rather, if uncertainty can be a test of validity it is only because of the nature of the particular rule-making power under consideration, and the “meaning and operation” of the authorising provisions themselves.

The point is, uncertainty (which may often be a synonym for lack of precision) is not some kind of freestanding criterion for invalidity. Uncertainty will only invalidate because one can derive from the text, context and purpose of the statute an intention by Parliament that the power be confined in a way which requires a high level of certainty (or precision). That will not always be the case …

318    Thus, one must turn to the rule-making power. The Act regulates the content of a s 10 declaration in only two ways. The first is that the declaration shall “describe the area with sufficient particulars to enable the area to be identified”: s 11(a). The Declaration identifies the declared area by description and by reference to a map in sch 1 to the Declaration. The second content requirement is that the declaration must “contain provisions for and in relation to the protection and preservation of the area from injury or desecration”: s 11(b). It is to be noticed that s 11(b) is directed to the inclusion of provisions in a declaration that will have a protective purpose. As Stewart J said in Cooper v Minister for Environment and Water [2025] FCA 1009; 311 FCR 566 at [21], the provisions of a declaration authorised by s 11 “are obviously critical to its efficacy; they can give normative effect to a declaration by stipulating the way in which protection is ensured including by proscribing what can and cannot be done in or adjacent to the specified area”.

319    Subsection 6(2) of the Declaration provides that “[a] person must not engage in any conduct that will, or is likely to, injure or desecrate the declared area”. In achieving the requirement in s 11(b) of the Act, the proscription in s 6(2) of the Declaration has two features: there is a reference to the proscribed “conduct” and there is a reference to the purpose of preventing an adverse effect (injury or desecration) caused by the conduct. Subsection 6(3) of the Declaration then provides a non-exhaustive list of conduct that must be read together with the purposive feature in s 6(2). Accordingly, for example, the conduct identified in s 6(3)(c) of the Declaration must be read together with the protective purpose in s 6(2). When properly understood, the facial tension postulated by LFB between the guidance note and s 6(3)(c) of the Declaration does not arise.

320    For the same reason, I do not consider there to be any uncertainty on the face of the provisions of the Declaration, as contended by LFB in oral submissions. On their face, the provisions working together can be characterised as provisions “for and in relation to the protection and preservation of the area from injury or desecration” for the purposes of s 11(b) of the Act. That being said, whether they are sufficiently certain to fall within the scope of s 11(b) must also be assessed in light of the penal consequences and the possibility of injunctive relief arising from contravention.

321    In my view, given the purposive nature of s 11(b) (ie, to protect the declaration area from injury or desecration caused by conduct), the proscriptions that are put in place in the Declaration necessarily will require an exercise of judgement as to whether the proscription of conduct (identified in s 6(3) of the Declaration or otherwise) will have the purpose of preventing the proscribed injurious effect against which the Declaration is designed to protect. For that reason, I do not consider that ss 6(2) and (3) of the Declaration, when read together, can be characterised as falling outside the scope of the authority conferred by s 11(b) of the Act by reason of uncertainty. That accounts for the alleged uncertainty arising from the conduct mentioned by LFB in oral submissions; namely, mining (s 6(3)(a)) and bulk earthworks (s 6(3)(b)).

CONCLUSION AND DISPOSITION

322    LFB has succeeded in establishing ground 1(a) on the basis that the revelation of the Blue Banded Bee Dreaming story constituted a new application that required the reporter process to recommence. The Declaration, as it was based on the original s 10 application, was beyond the authority of the Minister and, consequently, it is invalid. The consequence of that conclusion is that there is an extant s 10 application before the Minister that should be progressed without unreasonable delay: Cooper at [30].

323    I consider that the appropriate remedy is that sought by LFB; that is, to declare that the Declaration is invalid and to remit the s 10 application to the Minister for reconsideration and determination according to law. However, the Minister sought an opportunity to provide submissions on the appropriate orders, and I will allow an opportunity for both parties to provide short written submissions on the appropriate orders.

324    As to costs, LFB sought an opportunity to be heard on costs, and I will allow the parties the opportunity to provide short written submissions on costs before making those orders. It should be noted that, on 6 August 2025, I ordered that the costs as between LFB and WTOCWAC are to be capped: LFB Resources NL v Minister for the Environment and Water [2025] FCA 898. The proposed orders should be consistent with those orders.

325    On 5 December 2025, I made non-disclosure and confidentiality orders that require passages in this judgment to be redacted: LFB Resources NL v Minister for the Environment and Water (No 2) [2025] FCA 1527. To ensure that there is no inadvertent contravention of those orders, I consider it appropriate to allow the parties a brief opportunity to comment on information in the judgment which should be redacted in the published version of the judgment consistently with my earlier orders.

Associate:

Dated:    14 October 2026