'Irrational': Regis attacks Plibersek's blue-bee decision in federal mine challenge

Regis Resources took former Environment Minister Tanya Plibersek to the Federal Court on Wednesday after her Indigenous heritage protection declaration blocked their McPhillamys mine near Blayney from going ahead.

The declaration protected portions of the Belubula River based on a "highly controversial" blue-banded bee dreaming story. This forced the cancellation of a tailings dam at the site, rendering the entire project "unviable."

Barrister Perry Herzfeld SC, appearing for Regis, argued Ms Plibersek failed to properly consider these consequences.

Mr Herzfeld submitted that the dreaming story was raised late in the consultation process by the Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC). He argued the lack of independent assessment or scrutiny of these late claims amounted to a failure of procedural fairness.

The court heard the department had attempted to corroborate the story using a mural of a blue-banded bee in Bathurst - a move Mr Herzfeld described as "bootstrapping" and "entirely irrational".

It was alleged the mural had been sourced by WTOCWAC at a time when the group was already aware of the pending heritage protection application.

A 30-year suppression order had been handed down by Justice James Stellios on December 5, sealing a range of evidence relating to Ms Plibersek's decision.

Regis is seeking an overturn of the decision and for a different Minister to re-examine the evidence, with costs to also be a topic of discussion.

With the respondents yet to give submissions on behalf of the Minister, proceedings were adjourned until 10.15am on Thursday.