An extraordinary court order burying key evidence from former environment minister Tanya Plibersek’s decision to block development of the $1bn Blayney gold mine was made to protect cultural sensitivities and uphold Indigenous traditional law.

Although Federal Court judge James Stellios accepted the decision would have damaging impacts on open justice, he stood by the controversial order that covers affidavits from departmental staff and the oral evidence of a fringe Indigenous group opposing the mine – lasting up to 30 years for some evidence.

The order was imposed on the applications of the Wiradyuri Traditional Owners Central West Aboriginal Corporation and the Albanese government, which argued Indigenous people would be discouraged from participating in consultation processes in the future if the information was made public.

Wiradjuri leader Roy Ah-See said the decision would have the opposite effect and embolden “self-appointed claimants” to oppose projects without fear of public scrutiny.

“It’s open for anyone to bastardise Aboriginal culture and heritage,” he said. “It’s actually going to embolden Aboriginal people that don’t fit in a Native Title group, that don’t fit in the Land Council system.

“They can use this process to set up a corporation, come out and call themselves the traditional owner, and bang, you can stop a major project.”

The government also argued a suppression order would protect the identities of two public servants for safety reasons. Justice Stellios accepted the evidence from Wiradyuri Corporation director Jade Flynn, who argued “Wiradyuri traditional law” was not to be circulated broadly and was “meant to be shared only to other Indigenous people”.

“While I consider that a confidentiality order over the oral representations will have a detrimental impact on open justice, I accept that WTOCWAC’s defence in this proceeding of the making of the declaration should not come at the cost of culturally sensitive information being publicly disclosed,” Justice Stellios wrote. “It would prejudice the administration of justice to do so.”

Justice Stellios’s order was lashed by the opposition as a “deeply hypocritical act of secrecy” on the part of Labor after it entered office on a promise of transparency and accountability.

The developer behind the McPhillamys gold mine project in Central West NSW, Regis Resources, neither supported nor opposed the order, according to the judgment.

Ms Plibersek’s original decision relied on a blue-banded bee Dreaming story submitted by a member of the ­Wiradyuri corporation late in the consultative process. The contents of the submission were never publicly disclosed and Regis alleged that it was not subject to sufficient scrutiny or independent assessment, amounting to a failure of procedural fairness.

In her statement of reasons, Ms Plibersek cited a blue-banded bee mural in Bathurst as central evidence in her final decision to veto the Blayney mine’s proposed tailings dam site. The mural, however, was made in consultation with the Wiradyuri Corporation, and designed during the decision-making process for the heritage protection order.

Senior Wiradjuri elders denied the significance of the dreaming and the family of the elder who supposedly handed it down said they had never heard of it. It was submitted to government in December 2023 during a consultation process at the tail-end of the heritage investigation, nine months before Ms Plibersek’s decision.

Environment Department staff said the Dreaming was never independently assessed.

“Mr Flynn deposed that he advised … the necessity of keeping the representations confidential and for disclosure to be limited to the decision makers,” the judgment reads.

“(Justice Stellios agreed) the representations made by the group should be kept confidential as they included culturally sensitive information.

“Respecting those instructions is an obligation placed upon all members of WTOCWAC under Wiradyuri cultural protocols.”

Justice Stellios accepted the government’s submission that heritage protection investigations would be hampered if there was a risk of sensitive cultural information being exposed through court challenges.

“The consultation process … would be undermined if, in relevant circumstances, Aboriginal and Torres Strait Islander peoples were discouraged from participating in that process,” Justice Stellios wrote in the judgment.

“The process would be undermined because it relies on the voluntary provision of information by applicants who would be deterred from participation if imparted information of cultural sensitivity were to be later disclosed publicly if a declaration were challenged.”

Justice Stellios also made a 30-year order partially redacting the affidavit of one Department of Climate Change, Environment, Energy and Water public servant and entirely suppressing the affidavit of another to protect their identities.

The pair, labelled Public Servants 1 and 2, worked in DCCEEW’s heritage division. Justice Stellios said they faced “a particular vulnerability to heightened levels of external scrutiny and distressing engagement with stakeholders” should they be identified.

“I accept that the risks faced by Public Servant 2 are of a continuing nature and may not diminish when the media interest in this case runs its course,” the judgment reads.

“While a period of 30 years is lengthy, I am persuaded in the circumstances in this case that a period of that length is justified particularly given that there is no real impact on the principle of open justice.

“This is not a case of mere embarrassment, convenience or personal sensitivity. I accept the evidence that there is a risk to the safety of Public Servant 2.”

Justice Stellios said it would “prejudice the administration of justice to permit Public Servant 1’s vulnerability to be exposed in circumstances where that person’s identity is of little consequence to the subject matter of the dispute”.

Regis will argue in court Ms Plibersek’s decision was riddled with “irrelevant considerations”, failed to appropriately scrutinise evidence provided during consultation and used Indigenous cultural heritage as a Trojan horse for environmentalism.

The full Federal Court hearing will run from Wednesday to Friday.

by James Dowling

Secret bee business: judge rules Indigenous law trumps open justice in Blayney mine case