'Not a trump card': Aboriginal group denies tactical delay in revealing sacred bee story

Instead, it was one of many Dreaming stories given as evidence to satisfy former Environment Minister Tanya Plibersek of the Belubula River's sacred connection to Aboriginal culture.

An Indigenous heritage declaration was placed over parts of the river, putting a halt to the Regis Resources McPhillamys gold mine at Kings Plains near Blayney. The site had been intended for a tailings dam.

Barrister Timothy Goodwin submitted to the Federal Court on Friday that the Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC) had originally shared the Dreaming story as part of an emergency protection order application in 2023.

But after its dismissal, the corporation's elders had redirected the evidence to support an earlier near-identical pending heritage application, which was ultimately granted by Ms Plibersek in August 2024.

"It's not as though members of my client said 'well, we're finally going to share the Dreaming story that we have been keeping up our sleeves for a trump card for three years'. That's not the way the members saw it," Mr Goodwin said.

"Rather, the persons were understandably hesitant but openly went into more detail given the criticality of the moment. The decision of the former minister reflects that she understood this."

In response, barrister Perry Herzfeld SC for Regis Resources maintained that the department had an "irrationally unquestioning attitude" in accepting WTOCWAC's reasoning behind the late raising of the Dreaming.

The court heard that a Wiradjuri elder, who had authority to declare the story, was in hospital, while another elder present at the time of the initial Section 10 consultation could have disclosed the story.

"[The department's acceptance] is obviously flawed in a whole series of respects," Mr Herzfeld SC said.

While other stories had been related to the river such as the Three Brothers Dreaming, Mr Herzfeld SC said they were raised with the independent reporter, unlike the Blue-Banded Bee.

"The minister sought to make something of the fact that other Dreaming stories were raised. The one of determining significance against the applicant was the Blue-Banded Bee Dreaming," Mr Herzfeld SC said.

"There's a critical claim of tradition that was not considered by the reporter and is highly controversial among Aboriginal groups."

Regis doubled down on their claims of procedural unfairness, stating they "never had an opportunity" to comment on certain material that went against their interests, namely the Wellington Valley Wiradjuri Aboriginal Corporation submission.

"This was another Aboriginal group supporting the contested tradition, it was adding weight to a highly contested Aboriginal tradition critical to the application," Mr Herzfeld SC said.

The Wellington corporation had supported WTOCWAC's claims that the area was of cultural significance, particularly for pre-initiation ceremonies, which was challenged by the Orange Local Aboriginal Land Council.

Defending the department's assessment process, Mr Goodwin said their acceptance of a public mural in Bathurst of the blue-banded bee without expert criticism was "rational and logical".

"There was an unfortunate undertone in the applicant's [Regis] submissions that Aboriginal knowledge is required to have expert corroboration," Mr Goodwin said.

"That type of expectation ignores the communal ownership of stories, which is what occurred in this case."

With Regis, the minister and WTOCWAC having completed their submissions, Judge James Stellios reserved his judgement and adjourned the review.

All parties are seeking costs.