Federal Court invalidates Kings Plains heritage declaration due to procedural flaw in ATSIHP Act process

In LFB Resources NL v Minister for the Environment and Water (No 3) [2026] FCA 1504, the Federal Court has set aside the Commonwealth Minister's declaration protecting parts of the Belubula River, its headwaters and springs at Kings Plains under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act). Importantly, the Court's decision was not a rejection of the Aboriginal heritage claims underpinning the declaration. Rather, the declaration was held invalid because significant new cultural information emerged after the statutory reporting process had concluded and the Minister proceeded without recommencing that process.

The decision is significant for project proponents, Traditional Owners and decision-makers because it examines the circumstances in which new information provided during an ATSIHP Act process may amount to a new application requiring the statutory consultation and reporting regime to start again.

Background: Aboriginal heritage protection and the proposed McPhillamys Gold Project

The case concerned Regis Resources' proposed McPhillamys Gold Project near Blayney in New South Wales. In October 2020, Wiradjuri Elder Nyree Reynolds applied for protection under sections 9 and 10 of the ATSIHP Act over the project area, including the Belubula River and its headwaters. The application claimed the area was of particular significance because of its Aboriginal sites, cultural landscape, spiritual connection to the Belubula River and its headwaters, and its association with the Frontier Wars.

A reporter was appointed under section 10 of the ATSIHP Act and, following public notification and consultation, delivered a report in May 2022 recommending that a declaration not be made. The reporter accepted that the area had cultural significance but concluded there was insufficient evidence demonstrating the particular significance required by the Act.

The matter did not end there. During a subsequent section 9 application made in late 2023, further evidence was provided concerning the Blue Banded Bee Dreaming story, which was said to explain the creation of the Belubula River headwaters and springs and establish their particular significance to Wiradjuri people. The applicants later requested that this material also be considered in support of the existing section 10 application.

The Department ultimately recommended that the Minister make a declaration, relying substantially on the Blue Banded Bee Dreaming evidence. In August 2024, the Minister made the declaration protecting the Belubula River, its headwaters and springs.

Did the new cultural evidence amount to a new section 10 application?

The principal issue was whether the Blue Banded Bee Dreaming evidence was merely additional evidence supporting the existing section 10 application, or whether it fundamentally changed the basis of the application such that it amounted to a new application requiring a fresh section 10 reporting process.

LFB argued that the new cultural material changed the nature of the heritage claim after the statutory reporter had completed their work and that the Minister therefore lacked power to make the declaration without obtaining a new report.

The Minister and the Wiradyuri Traditional Owners Central West Aboriginal Corporation contended that the material simply provided greater detail regarding an already asserted spiritual connection between the Belubula River and its headwaters and did not constitute a new claim.

The Court's decision

Justice Stellios accepted LFB's argument and held that the declaration was invalid.

The Court emphasised that the statutory reporting process is central to the section 10 scheme. The legislation requires public notification of the purpose of the application, an opportunity for interested parties to make submissions, consideration of those submissions by an independent reporter, and consideration of the resulting report by the Minister.

While not every new piece of information will trigger a fresh application, the Court found that the Blue Banded Bee Dreaming evidence went beyond merely supplementing existing material. It supplied the very specificity and particularity that the reporter had previously found lacking in relation to the significance of the area. The Court noted that:

• the reporter had concluded that the particular spiritual significance of the area was unclear on the material then available;
• the Blue Banded Bee Dreaming evidence became central to the Department's later recommendation that a declaration be made;
• the Minister's reasoning relied heavily on that evidence when determining both significance and threat; and
• interested persons had not been given the opportunity, through the statutory reporting process, to make submissions specifically directed to that more particularised claim.

In those circumstances, the Court held that the new material constituted, in substance, a new application. Once the applicants sought to rely upon that information as part of the section 10 application, the statutory reporter process should have recommenced. Because it did not, a precondition to the exercise of the Minister's power was not satisfied and the declaration was beyond power.

Implications

The decision highlights the procedural importance of the section 10 reporting regime under the ATSIHP Act. New information will not always require the process to start again. However, where later material materially changes or particularises the asserted significance of an area and becomes central to the Minister's assessment, the information may be treated as a new application requiring a fresh round of public notification, consultation and reporting.

For proponents and Traditional Owners alike, the judgement underscores that compliance with the ATSIHP Act's procedural requirements remains critical, particularly where significant new evidence emerges after a reporter's report has been completed.