Tanya Plibersek accused in court of ‘strapping up’ reasons for blocking mine
A court has heard explosive claims that Tanya Plibersek ‘strapped up’ her reasons for blocking a billion-dollar mine using a blue banded bee Dreaming story submitted at the last minute.
Tanya Plibersek’s acceptance of a blue banded bee Dreaming story as central evidence for blocking the $1bn Blayney mine without independent scrutiny “lacked any rational basis” and its justification was contradicted by the department’s own evidence, says mining giant Regis Resources.
Regis accused the former environment minister at a Federal Court judicial review on Wednesday of “bootstrapping” her reasons for blocking the project after taking two months to write a summary of her reasons for protecting the site of a proposed tailings dam within the McPhillamy’s goldmine site.
These reasons relied on the Dreaming story, submitted by a member of the Wiradyuri Traditional Owners Central West Aboriginal Corporation two years after they first objected to the mine, and only after an independent investigator and the Environment Department both recommended the application be dismissed.
It has previously been suggested the evidence was given late because the relevant knowledge holder, senior Wiradyuri Corporation member Bill Allen, was hospitalised during the initial consultations.
Regis barrister Perry Herzfeld, however, suggested Mr Allen was given custodianship of the Dreaming by a now-deceased senior Wiradyuri Corporation member who was actively driving the heritage challenge up until his passing.
There was no rational explanation for why this original knowledge holder could not have mentioned the Dreaming, Mr Herzfeld said.
“There is no explanation provided anywhere in the material before the minister (about) why that individual did not raise this story,” he told the court. “Even if Mr Allen was the only person entitled to disclose it, why was it two years … before this story was raised?
“In the face of these obvious difficulties, the department’s uncritical acceptance of the explanation given by WTOCWAC lacked any rational basis.”
Mr Herzfeld said the evidence was further contradicted by a transcript of a meeting from December 2023 when the Wiradyuri Corporation first divulged the Dreaming story, in which Wiradyuri Corporation member Jade Flynn suggested there were multiple knowledge holders in the group.
“So the story I’m going to tell you was given to us by an elder who has passed away,” Mr Flynn said according to the reading of the transcript in court. “This story has been passed down in the oral tradition and has been given to us. We’re now the custodians of this story.”
Ms Plibersek made her heritage order in August last year, then wrote out her reasons for doing so two months later on October 11 at the repeated request of Regis.
Mr Herzfeld fought to prevent the statement of reasons from being admitted into evidence, arguing it was not an accurate representation of Ms Plibersek’s decision-making process and was likely written in anticipation of legal action.
“It was prepared months after the decision, and so can’t be regarded as a contemporaneous representation,” he said. “It’s clear that the statement was worked on extensively by the department and, one presumes, the lawyers instructed by the minister.
“Proceedings were clearly in contemplation, and this statement was clearly made in contemplation of those proceedings.”
Tiffany Wong, appearing for the government, said the statement still carried “reasonable contemporaneity” and its value was not muddied by potential departmental or legal intervention. “Even if there was some involvement (by lawyers), that does not mean the document did not meet the requirements,” she said.
In her statement of reasons, Ms Plibersek suggested a mural in Bathurst of the blue banded bee Dreaming bolstered her decision. The mural, however, was made in consultation with the Wiradyuri Corporation, and designed during the decision-making process for the heritage order.
“The mural was just WTOCWAC’s own claim in the form of a painting,” Mr Herzfeld said. “There’s an entirely bootstrapping use of the mural. The minister used the mural as an independent source of corroboration ... where it in fact provided no independent support.”
Federal Court judge James Stellios, presiding over the case, last week granted a non-publication order to protect cultural sensitivities and uphold Indigenous traditional law.
Justice Stellios accepted the decision would have damaging impacts on open justice. It covers affidavits from departmental staff and oral evidence from the Wiradyuri Corporation – lasting up to 30 years for some evidence.
Under the judicial review, Regis seeks to have the Blayney decision repealed and seeks a re-examination of the evidence to be handled by Ms Plibersek’s successor, Murray Watt.
Wiradyuri Corporation members declined to comment outside court.
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