Tanya Plibersek risked Wiradyuri heritage protection by building it on a record she never tested. Justice James Stellios of the Federal Court threw her protection order out on Wednesday, and he was explicit about why: the ruling and his written reasons “say nothing about the merits of the claim … whether it’s a significant area or under threat of injury or desecration … those are matters within the authority of the minister … not the jurisdiction of this court.” She did not lose because the Belubula River headwaters don’t matter. She lost because she legislated around the process that decides whether they matter.
I have sat through enough contested public-comment nights at the Adams County Land and Water Conservation Department, and enough township board fights over large livestock operations, to know what a poisoned record does to a good cause. Up in the northwest part of this state, towns like Trade Lake, Laketown and Eureka passed CAFO operations ordinances between 2019 and 2023 because their wells told them to — and the industry response was litigation aimed straight at the record each board made. That is the whole game. A county board or a DNR examiner can reach the right answer on the wrong paperwork, and the right answer dies anyway. Then the operator gets the permit, the town gets the delay and the bill, and everybody who fought for the ordinance spends the next three years explaining why the last fight doesn’t count.
That is what happened in Blayney. Regis Resources challenged the order over a three-day hearing, and one of the sharpest points senior counsel Perry Herzfeld SC pressed was a blue-banded bee Dreaming story that entered the government’s deliberations two years after the original section 10 application was lodged. I am not going to weigh a Wiradyuri creation story against a tailings dam; that is not mine to weigh and the court did not weigh it either. But the minister cannot graft new material onto a proceeding two years late and call it care. The Traditional Owners deserved a decision made on the full record, with everything aired in time and tested by the other side. They did not get that, and the protection they asked for is now back in front of a different minister, Murray Watt, to be decided cleanly or not at all.
The pattern crosses oceans. In September, Mexico’s Supreme Court struck down an ammonia plant authorization because authorities skipped required Indigenous consultation (Mexico’s Supreme Court rules ammonia plant authorization bypassed required Indigenous consultation). American tribes keep testing the harder version of the same lesson — courts ordering relief on procedure, or projects collapsing under backlash with nothing resolved, as with a Black Hills drilling project canceled after tribal pushback and the tribes who went back to court months later over graphite drilling near sacred sites. Here in Wisconsin, when the Ho-Chunk or the Ojibwe bands sit down with the DNR on a project that touches treaty country, the consultation record they help build is the record that will hold up in front of a judge. Cut the corners and the Tribe loses the very protection the corner-cutting was meant to secure. That is the cost nobody prices in on the day the order gets signed.
Ordinary people live downstream of this. A township clerk who keeps minutes that show who said what, and when, hands the board a record that survives review — and a board whose record survives review keeps its ordinance. A small operator applying for a permit gets a decision that does not evaporate on appeal, which is worth more to a man borrowing against equipment than any promise of speed. A county whose permitting record is clean keeps its tax base, because operators stop pricing in the litigation risk that a defective file invites. And a Tribe that made its case on time keeps its standing for the next project, and the one after that. Procedural fairness is not an abstraction for lawyers. It is the thing that decides whether the win you won is still yours in three years.
Stellios sent the merits back to Watt, who inherits a clean file and a real decision: whether the Belubula headwaters warrant the extraordinary step of stopping one of Australia’s largest undeveloped gold projects. Regis, for its part, is not waiting — the company is pursuing an alternative waste facility that avoids the protected area entirely, and its managing director called the ruling vindication of the position held since August 2024. Fine. Let the minister decide it on a record the Traditional Owners can defend and the company can test. That is what the law is for.
Wendell Berry has said that the arguments that damage us most are the ones made carelessly in favor of what we love. Plibersek’s order was careless in defense of something worth defending, and it cost the Wiradyuri the protection it was meant to give them. The Central West got its gold project back in play, but the bigger thing on the table is whether anyone building a record for a river, a well field or a set of springs will build it the slow way now. Build it the slow way. Down here, on this sand, we have watched what happens to the other kind.