Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Housing as Delegate of the Minister for Environment & Anor and Arid Lands Environment Centre Inc v Minister for Environment & Anor - [2024] NTSC 4

CITATION:Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Housing as Delegate of the Minister for Environment & Anor and Arid Lands Environment Centre Inc v Minister for Environment & Anor [2024] NTSC 4
PARTIES:MPWEREMPWER ABORIGINAL CORPORATION RNTBC (ICN 7316)

v
MINISTER FOR TERRITORY FAMILIES AND URBAN HOUSING AS DELEGATE OF THE MINISTER FOR ENVIRONMENT
AND

FORTUNE AGRIBUSINESS FUNDS MANAGEMENT PTY LTD (ACN 607 474 251)

AND BETWEEN

ARID LANDS ENVIRONMENT CENTRE INC
v
MINISTER FOR ENVIRONMENT
AND
FORTUNE AGRIBUSINESS FUNDS MANAGEMENT PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-00191-SC and 2022-00087-SC
DELIVERED:  31 January 2024
HEARING DATES:  7, 8 and 9 September 2022
JUDGMENT OF:  Barr J
CATCHWORDS:

ADMINISTRATIVE LAW – Judicial review – Consolidated proceedings – Declaratory relief – Certiorari – Mandamus – Jurisdictional error – Unreasonableness – Water Act 1992 (NT) – Minister’s review of decision of Controller of Water Resources – Decision of Minister to substitute decision for that made by Controller – Grant of groundwater extraction licence with additional and amended conditions of licence – Applications of both plaintiffs dismissed.
2022-00087-SC- (ALEC)
JURISDICTIONAL ERROR – Whether Minister’s decision affected by jurisdictional error – s 22B Water Act 1992 – “Water resource management” to be in accordance with declared water allocation plan –Whether Minister is bound by s 22B not to depart from provisions of declared plan – Minister has wide discretion under s 90(1) of the Act – Held Minister required to take into account the declared water allocation plan – Minister not required by s 22B to necessarily comply with declared water allocation plan – Ground 1 of application not made out.
JURISDICTIONAL ERROR – Whether Minister’s decision lacked finality – Conditions precedent and staging conditions – Whether Minister impermissibly deferred mandatory considerations – Held Minister empowered by s 60(1) to impose conditions generally – Practical flexibility – Minister’s power sufficiently wide to encompass the imposition of conditions precedent before extraction entitlements come into effect – Conditions precedent and staging conditions lawfully allow for flexible regulation – Ground 2 not made out.
UNREASONABLENESS – Whether Minister’s decision was legally unreasonable – Whether Minister took account of irrelevant factors and failed to consider relevant factors – Minister not required to ‘comply with’ declared water allocation plan – Held Minister’s decision was not in disregard of mandatory relevant considerations – Held Minister entitled to consider the Guideline document under the wide discretion in s 90(1) – Plaintiff failed to establish unreasonableness in the Wednesbury sense – Plaintiff failed to establish that the Minister’s decision was made for a purpose not authorised by statute, or otherwise lacking an evident and intelligible justification – Limited role of court on review – Ground 3 not made out.
2022-00191-SC (MAC)
UNREASONABLENESS – Whether decision was legally unreasonable – Whether Minister failed to give proper, reasonable and rational consideration to relevant factors – Plaintiff contends Minister unable to have made a reasonable decision within the limited time available – Role of relevant government department – Advisory role of the Review Panel – Minister’s very detailed reasons – Clear evidence of engagement in an active intellectual process – Plaintiff failed to establish that the Minister failed to give proper, reasonable and rational consideration to relevant considerations – Grounds 1 and 2 of application not made out.
JURISDICTIONAL ERROR – Whether Minister’s decision was affected by jurisdictional error – Whether Minister failed to observe necessary limits in her review in setting various categories of conditions precedent – Whether conditions precedent had a valid purpose, risked altering the proposal or were an impermissible delegation of authority – Held conditions were a valid exercise of the Minister’s power – Grounds 3, 4 and 5 not made out.
UNREASONABLENESS – Whether decision was legally unreasonable or seriously irrational – Whether decisions were not supported by or contrary to evidence – Whether Minister failed to give sufficient weight to Review Panel recommendations – Minister’s decision to extend the period of Stage 1 of the licence from two years to three years not in accordance with five year recommendation of the Review Panel – Held Panel’s role – Minister entitled to take into account possible adverse consequences to viability of the licence applicant’s horticulture project – Minister empowered to take such action as she thinks fit – Limited role of Court on review – Minister’s reasons disclose a rational and intelligible basis for the licence decision – Grounds 6 and 7 not made out.
PROCEDURAL FAIRNESS – Whether Minister failed to afford procedural fairness – Content of duty informed by legislative purpose and context – Period between receipt of advice from Review Panel and Minister’s decision on review – Whether Minister required to afford further opportunity to plaintiff to respond to various documents – Submissions of licence applicant and Minister’s proposed licence conditions – Held plaintiff failed to establish that provision of documents and other data could realistically have resulted in a different decision – Further held content of Minister’s duty did not require recurrent consultation with the plaintiff – Ground 8 not made out.
JURISDICTIONAL ERROR – Recent statutory amendment in effect at the time of Minister’s decision – Jurisdictional pre-condition that the Minister be satisfied that “special circumstances” justified the grant of a licence for a period in excess of 10 years – Jurisdictional pre-condition not satisfied – Whether Minister bound by the provision as amended – Minister proposed to substitute amended decision for the Controller’s decision – Minister’s opinion as to the decision the Controller ‘should have made in the first instance’ – Held that legislative regime in place prior to amendment applied on the review – Controller could not have made a decision ‘in the first instance’ to comply with a legislative provision which had not come into effect – Minister did not err in law in failing to comply with provision as amended – No error of law going to jurisdiction – Ground 9 not made out.
LEGISLATION & OTHER MATERIALS
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 10(1)(c)
Aboriginal Land Rights (Northern Territory) Act 1976, s 11
Interpretation Act 1978 (NT) s 62A
Migration Act 1958 (Cth) s 501(3), s 501(3A), s 501CA
Motor Vehicles Act (1959-1963) (SA), s 102(2)
Native Title Act 1993 (Cth) s 24HA
Water Act 1992 (NT) s 4(1), s 18, s 19(2), s 22, s 22A, s 22B(4), s 22B(5), s 24(1), s 30(3)(a)(ii), s 30(3)(b), s 30(4), s 31, s 60(1), s 60(2), s 60(4), s 71A, s 71B(4), s 71C(2), s 71E(4), s 90(1), s 93(1)
Water Amendment Act 2000 (NT) s 5
Water Amendment Act 2007 (NT) s 7
Northern Territory, Parliamentary Debates, Legislative Assembly, 2 March 2000, pp 5340—5341, (Daryl Manzie, Minister for Asian Relations and Trade)
Western District Water Allocation Plan 2018-2021, Parts 1.1.2, 8.2.1, 8.3.1
AUTHORITIES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; Baker v The Queen [2004] HCA 45; 223 CLR 513; Baskerville v Martin [1067] SASR 156; Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352; Chapman and Others v Ticker and Others (1995) 55 FCR 316; Clark v Cook Shire Council [2008] 1 Qd R 327; Corporation of the City of Norwood Payneham and St Peters v Minister for Infrastructure and Transport [2021] SASC 97; Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329; DVO16 v Minister for Immigration and Border Protection & Anor [2021] HCA 12; 273 CLR 177; DWN042 v Republic of Nauru [2017] HCA 56; Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management [2015] NTSC 30; 35 NTLR 140; Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30, 262 CLR 510; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Kioa v West (1985) 159 CLR 550; Lend lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA; Lester Land Holdings Pty Ltd Development Assessment Commission (2020) 243 LGERA 221; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; Minister for Home Affairs v Ogawa (2019) 269 FCR 536; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration & Multicultural Affairs; Ex Parte Applicant s20/2002 (2003) 77 ALJR 1165; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; Mison v Randwick Municipal Counsel (1991) 23 NSWLR 734; Mobil Oil Australia Ply Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 46; MZAPC v Minister for Immigration and Border Protection [2021] 95 ALJR 441; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; Ogawa v Finance Minister [2021] FCAFC 17; Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Rex on behalf of the Akwerlpe-Waake, Iliyarne, Lyentyawel Ileparranem and Arrawatyen People v Northern Territory of Australia [2010] FCA 911; Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152; SZBEL v Minister for Immigration (2006) 228 CLR 152; The Queen v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322; Tickner v Chapman (1995) 57 FCR 451; Twist v Randwick Municipal Council (1976) 136 CLR 106; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, referred to.
REPRESENTATION:
Counsel in file no 2022-00191-SC:
Plaintiff:C Young KC, L Hilly
First Defendant:  C Jacobi KC, T Cramp
Second Defendant:  S McLeod KC, M Wilkinson
Counsel in file no 2022-00087-SC:
Plaintiff:J Lawrence SC, M Sherman
First Defendant:  C Jacobi KC, T Cramp
Second Defendant:  S McLeod KC, M Wilkinson
Solicitors in file no 2022-00191-SC:
Plaintiff:Central Land Council
First Defendant:  Solicitor for the Northern Territory
Second Defendant:  Ward Keller
Solicitors in file no 2022-00087-SC:
Plaintiff:Environmental Defenders Office Ltd
First Defendant:  Solicitor for the Northern Territory
Second Defendant:  Ward Keller
Judgment category classification:    A
Judgment ID Number:  Bar2402
Number of pages:  143

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Housing as Delegate of the Minister for Environment & Anor and Arid Lands Environment Centre Inc v Minister for Environment & Anor [2024] NTSC 4

No. 2022-00191-SC and 2022-00087-SC

BETWEEN:

MPWEREMPWER ABORIGINAL CORPORATION RNTBC (ICN 7316)
Plaintiff

AND:

MINISTER FOR TERRITORY FAMILIES AND URBAN HOUSING AS DELEGATE OF THE MINISTER FOR ENVIRONMENT
First Defendant

AND:
FORTUNE AGRIBUSINESS FUNDS MANAGEMENT PTY LTD (ACN 607 474 251)
Second Defendant

BETWEEN:
ARID LANDS ENVIRONMENT CENTRE INC
Plaintiff

AND:
MINISTER FOR ENVIRONMENT
First Defendant

AND:
FORTUNE AGRIBUSINESS FUNDS MANAGEMENT PTY LTD (ACN 607 474 251)
Second Defendant

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 31 January 2024)
The parties

The second defendant (“Fortune”) is the lessee under Perpetual Pastoral Lease 1022 of Northern Territory Portion 653, which comprises some 2,949 square kilometres of land known as Singleton Station. The property is situated in the Western Davenport region of the Northern Territory, approximately 380 km north of Alice Springs.
Fortune proposes to develop approximately 3,500 hectares of Singleton Station for the purpose of intensive irrigated horticulture. The proposed ‘Singleton Horticulture Project’ involves the development in sequence of nine separate blocks, each of about 400 hectares, over an eight-year period. Each block would have 16 interlinked irrigation bores, a total of 144 such bores. Fortune has identified the most suitable crops as mandarins, table grapes, dried grapes, onions, avocados, muskmelons and jujube. The success of the Project is dependent on Fortune having access to significant quantities of groundwater, increasing to 40 gigalitres or 40,000 megalitres (ML) of water per annum once the project is fully developed. The water requirement will increase in parallel with the development program such that Fortune anticipates that it will require the maximum water allocation three to four years after Year 8 of crop planting, when trees approach maturity.[1]
The plaintiff Mpwerempwer Aboriginal Corporation (“MAC”) is the prescribed body corporate for the native title holders of the Singleton pastoral lease. MAC has a statutory role to act as their agent. The native title holders hold rights and interests which co-exist with the rights of Fortune as the lessee of the pastoral lease, including the right of access for the purpose of maintaining and protecting places and areas of importance on the land, the right to hunt and gather, and the right to take and use the natural resources of the land and waters.
The primary contention made by MAC on behalf of the native title holders is that the taking of water pursuant to the proposed licence is modelled to significantly lower the water table across a large area of the pastoral lease, which is likely to reduce access to water, to damage sacred sites and affect the availability of animal species.
The plaintiff Arid Lands Environment Centre Inc (“ALEC”) is an environmental organisation in Central Australia which aims to support local people in the protection of arid lands. The central object, stated in its constitution, “is to protect the environment and ensure healthy futures for arid lands and peoples”.[2]
ALEC commenced proceedings on 13 January 2022. MAC commenced proceedings on 28 January 2022. An order was made on 10 March 2022 that the two proceedings be tried at the same time and determined together.[3] A further order was made that evidence in each proceeding was to be treated as evidence in both proceedings. The parties’ cases, as consolidated, were heard over three days in September 2022.
The defendants did not contest the standing of the plaintiffs to bring the proceedings respectively commenced by each of them.
Background
Under s 22 of the Water Act 1992 (“the Act”), the Minister may declare part of the Northern Territory to be a water control district and allocate a name to the district. Section 22B(1) of the Act provides that the Minister may declare a water allocation plan in respect of a water control district. Singleton Station is within the declared Western Davenport Water Control District and the relevant water allocation plan was the Western Davenport Water Allocation Plan 2018-2021 (“the WDWAP”). Section 22B(4) of the Act provides that “water resource management” in a water control district is to be in accordance with the water allocation plan declared in respect of the district.
On 18 August 2020, Fortune applied to the Controller of Water Resources (“the Controller”) under s 60 of the Act for a licence to take groundwater from Singleton Station for the purpose of the proposed horticulture project described in [2] above.
On 8 April 2021, the Controller decided under s 60 of the Water Act to grant Fortune a water extraction licence, being WDPCC100000 (the “Controller’s decision”).[4] The licence, which was subject to extensive conditions (including eight conditions precedent and staging conditions), allowed Fortune to take up to 40,000ML of groundwater per annum from aquifers in the Central Plains Management Zone in the Western Davenport Water Control District. The groundwater was to be taken from Singleton Station.
In making the decision to grant the water extraction licence, the Controller had regard, inter alia, to a document entitled “Guideline: Limits of acceptable change to groundwater dependent vegetation in the Western Davenport Water Control District” (“the Guideline”).[5] The stated purpose of the Guideline was to “provide guidance to applicants for water extraction licences in the Western Davenport Water Control District”. It may be noted that the Guideline was, by express words, “intended to be read subject to the Western Davenport Water Allocation Plan 2018-2021”.[6] The Guideline was not given any express recognition or significance under the Water Act 1992. Counsel for ALEC described it as “at best a statement of Departmental policy”.
In May 2021, pursuant to s 30(1) of the Act, ALEC and MAC (and other aggrieved parties) sought a review by the Minister for Environment of the decision of the Controller to grant the water extraction licence. The grounds relied on are set out in [13] and [14] below. Both ALEC and MAC submitted that the Minister should set aside the Controller’s decision and substitute a decision to refuse the licence.
ALEC set out the following grounds in its application for review:[7]
·     The Controller failed to appropriately assess the Licence in accordance with the WAP.
·     The Licence is inconsistent with the WAP and was therefore granted in breach of the Water Act.
·     The Controller should not have placed reliance on the Guideline because it is inconsistent with the WAP; is not a statutory document; was approved by the Controller herself as CEO; and allows for the destruction of up to 30% of GDEs.
·     The Controller should not have placed reliance on the document titled Singleton Horticulture Project Groundwater Dependent Ecosystem Mapping and Borefield Design (the ‘Fortune Report’) as it is a desktop review rather than fieldwork; and it does not assess the impact to GDEs against the criteria required under the WAP.
·     The Controller relied upon insufficient groundwater modelling.
·     The Controller failed to properly consider the possible deterioration of water quality as required under section 90(1)(h) of the Water Act 1992.
·     The Controller's reliance on the implementation of an Adaptive Management Framework is unrealistic, gives rise to future uncertainty and compromises the health of GDEs.
·     The Controller did not appropriately consider impacts from the Licence on the Strategic Aboriginal Water Reserves (SWR).
·     The Controller should have assessed the impacts of the Licence on cultural values.
MAC set out the following grounds in its application for review:[8]
·     The estimated sustainable yield used by the Controller is not consistent with the Water Act 1992 or other definitions and allocation of water should not result in the depletion of aquifers.
·     The Controller failed to take into account the uncertainties underlying the groundwater modelling and the conditions imposed on the Licence cannot address such deficiency.
·     The Controller's decision fails to take into account the impact that the Licence will have on Aboriginal cultural values.
·     The Guideline is inconsistent with the WAP and the Controller should not have relied upon it.
·     The thresholds in the Guideline are arbitrary.
·     The risks to aquatic GDEs have not been considered.
·     There is a lack of understanding of region-specific GDEs.
·     The Controller should not have granted the Licence for a term of more than 10 years given the uncertainty in the groundwater model and the potential impacts of granting the Licence.
·     The Controller failed to address the concerns raised by the CLC about the biodiversity surveys conducted by NT Government.
·     The licence conditions do not sufficiently address the soil salinity risks.

MAC subsequently raised a number of other matters in submissions to the Review Panel, including the submission that additional information should be required before a licence decision could be made,[9] and that the Guideline did not take into account cultural values.
In July 2021, the Minister for Environment referred the matter to the Water Resources Review Panel (“the Review Panel”) pursuant to s 30(3)(b) of the Act.
The relevant provisions of s 30 are set out below:
30Application for review
(1)Subject to subsection (2), a person aggrieved by an action or decision under this Act ... of the Controller ... may apply to the Minister to review the matter.
(2)An application under this section shall be made in the prescribed manner and form.
(3)Subject to this Act, the Minister may:
(a)in the case of an application against an action or decision of the Controller:
(i)uphold the action or decision;
(ii)substitute for the decision the decision that, in the opinion of the Minister, the Controller should have made in the first instance; or
(iii)refer a matter back to the Controller for reconsideration of the action or decision with or without directions about new matters that the Controller shall take into account in that reconsideration; or
(b)in any case, refer the matter to the Review Panel with the request that it advise the Minister within the time indicated on what action the Minister should take in relation to the matter.
(4) If a matter has been referred under subsection (3)(b) to the Review Panel, the Review Panel must consider it and advise the Minister accordingly and the Minister must take such action under subsection (3)(a)(i) or (ii) as the Minister thinks fit.
On 15 October 2021, the Review Panel provided its report to the Minister.
At all material times, Stephanie Jungfer was an Executive Officer in the Department of Environment, Parks and Water Security. She carried out a number of roles in that position, including co-ordinating the material provided to the Minister for Environment (or the delegate of the Minister, as the case may be) when the Minister undertook a review of a decision of the Controller under s 30 of the Act.[10] In that role, Ms Jungfer wrote to the Review Panel on 2 November 2021 to seek clarification about an aspect of the Panel’s report and recommendations, specifically, the Panel’s opinion “that a comprehensive cultural impact assessment is required prior to the extraction of any significant volumes of water on Singleton Station”.[11]
On 3 November 2021, the Chairman of the Review Panel replied to Ms Jungfer as follows:[12]
The key issue here, in the Panel’s opinion, is that there is little in the Decision, or licence, that specifically addresses one of the key objectives of the Water Allocation Plan, i.e. “to protect Aboriginal cultural values associated with water”.
The implementation activities related to cultural values (WAP 8.4.1, Objective 2)[13] were intended to map and document the water dependent cultural values of the region, and would have enabled the development of a set of cultural reference points to be used by the proponent in their modelling of impacts and reflected in the adaptive management framework.
In lieu of this work having been done, the Panel’s view is that it is now either up to the Department (in partnership with the CLC) to commit to undertake the necessary surveys and consultation/assessment described in the WAP, prior to significant groundwater extraction, or it is up to the proponent to facilitate that work. That work, which we have described as a ‘cultural values impact assessment’, needs to be undertaken as a pre-condition as it will provide the information that is required (but is not yet available) to inform our amended CP 5.
................
The Panel is not equipped to fully define the terms of reference for a cultural values impact assessment but considers that these are some of the key components and work that needs to be done in order to meet the objectives of the WAP. Appropriate consultation is required and the panel acknowledges that this may be a challenging process for either the Department or the proponent.
On 11 November 2021, pursuant to s 19(1) of the Act, the Minister for Environment delegated her powers under s 30 of the Act to the Minister for Territory Families and Urban Housing. The delegation was for the exercise of powers in relation to the Controller’s Decision. When the delegated power was exercised, it was deemed to have been exercised by the Minister who delegated the power.[14] Subsequent references in these reasons to “the Minister” will refer to the Minister-delegate.
On 12 November 2021, two Ministerial Briefings were sent to the Minister by Ms Jungfer. The first briefing was sent at about 1.00pm on Friday, 12 November 2021. A supplementary briefing was sent to the Minister for Environment’s chief of staff at about 5.46pm on 12 November 2021
On Monday 15 November 2021, at about 12.45pm, Ms Jungfer attended a meeting with the Minister and the Minister’s chief of staff.
On 15 November 2021, after a revised draft licence had been provided to the Minister by Ms Jungfer at about 4.30pm, the Minister signed the following documents in connection with the grant of a water extraction licence to Fortune:
(a.)    the Minister’s reasons for decision, in a document entitled Section 30 Review of Water Extraction Licence Decision;
(b.)   ‘Licence to Take Water’, licence number WDCP10358 (“the Licence”), and
(c.)    letters to various parties, the Controller, and the Panel, notifying them of the Minister’s decision.
In carrying out a review of the decision of the Controller, after receiving the advice of the Review Panel, the Minister was empowered to grant a water extraction licence pursuant to s 30(4) read with s 30(3)(a)(ii) Water Act 1992. The statutory discretion reposed in the Minister on a review of the decision of the Controller was co-extensive with that of the Controller; no separate criteria were prescribed for the review. The Minister’s power to substitute a fresh decision for that of the Controller depended on the Minister being of the opinion that the substituted decision was one which the Controller should have made in the first instance. In my opinion, the power under s 30(3)(a)(ii) of the Act includes the power to stand in all respects in the shoes of the Controller. However, on the review, it was for the Minister to determine for herself the extent to which she needed to re-exercise the Controller’s functions.[15]
The Minister’s actual decision was stated simply, as follows:
As a delegate of the Minister for Environment, in accordance with s 30(3)(a)(ii) I have determined on the review to substitute the decision made by the Controller but would grant the licence on the same basis as the Controller save that I would add to, and amend, the conditions of the licence as follows.
There followed a series of additional conditions precedent (CP9 and CP10) and an amended condition (SC1), with consequential amendments to CP1, CP3, CP5, CP7, CP8, and SC4. In relation to the use of conditions precedent as conditions of licence under s 60(2) Water Act 1992, the Minister provided the following explanation:[16]
I am satisfied that the conditions precedent and other conditions on this licence taken as a whole, including those that are additional and the amendments, address the risks, potential impacts and uncertainty associated with the proposed extraction of water. In particular this course allows the Licence Holder to continue to undertake the works, investigations and other activities required to meet the conditions precedent. They will provide additional information and will inform the development of appropriate plans. That will not only provide greater certainty but allow the Licence Holder, if the conditions are satisfied, to ultimately be able to extract water for productive activities in the future.
The Minister was required by s 71E(4) of the Act to state in the review decision not only her reasons but also the way in which she took into account (1) the comments made in response to the published notice of intention to make the water extraction licence decision,[17] and (2) any relevant factors mentioned in s 90(1) of the Act.[18] I will say more about those matters below.
The parties’ cases
The plaintiff ALEC seeks a declaration that, in making the decision (which it describes as the ‘purported decision’), the Minister failed to comply with s 22B(4), further and alternatively, with s 90(1)(ab) of the Act, and thereby committed a jurisdictional error in that the decision failed to accord with Part 8.2.1 of the WDWAP. ALEC seeks a further declaration that the Minister’s decision involved jurisdictional error because the licence was granted subject to conditions which operated to defer consideration of matters which, for the decision to have been lawfully made pursuant to s 30(3)(a)(ii) of the Act, should have been determined prior to or at the time of the actual decision (15 November 2021). ALEC seeks a third declaration that the Minister’s decision was “legally unreasonable”.[19]
In addition to the declarations, ALEC seeks an order in the nature of certiorari setting aside or quashing the Minister’s decision, and an order in the nature of mandamus compelling at the Minister to “remake the purported decision according to law”.
The grounds of review relied on by ALEC, set out in the originating motion, are as follows:
Grounds of Review
1. The Purported Decision involved a jurisdictional error in that the First Defendant failed to comply with s 22B(4) and, further and in the alternative, s 90(1)(ab) of the Act.
Particulars
a.On 15 July 2009, the Minister for Natural Resources, Environment and Heritage declared, pursuant to s 22 of the Water Act, the Western Davenport Water Control District as the area shown in the Schedule to the Northern Territory Government Gazette No. G28 15 July 2009.
b.On 28 December 2018, the Minister for Tourism and Culture acting for the Minister for Environment and Natural Resources declared, pursuant to s 22B(1) of the Act, that the Western Davenport Water Allocation Plan 2018-2021 (WAP) be a water allocation plan in respect of the Western Davenport Water Control District and that the WAP will remain in force until 6 December 2021: Northern Territory Government Gazette No. S114, 28 December 2018.
c.The WAP established a “groundwater dependent ecosystem protection area” (GDE Protection Area) (Figure 11, WAP) which overlapped with the bore field approved by the Purported Decision (Licence to Take Water, Schedule 1).
d.Section 8.2.1 of the WAP relevantly required that “proposed extraction should not result in a change to groundwater conditions beyond” certain identified limits within the GDE Protection Area. The following limits were then provided:
i.“Modelled extraction does not cause the maximum depth to water table to exceed 15 metres below ground level”;
ii.“Modelled extraction does not result in the maximum depth to water table declining by more than 50% below the levels that would be expected under a natural baseline scenario (no pumping scenario)”; and
iii.“Modelled extraction does not result in a rate of groundwater drawdown that exceeds 0.2 metres/year.”
(together, the WAP GDE Criteria)
e.Section 22B(4) of the Act provides that “water resource management in a water control district is to be in accordance with the water allocation plan declared in respect of the district.”
f.Section 60 of the Act allows the Water Controller to grant a person a licence in the prescribed form to take water from a bore.
g.Section 90(1) of the Act sets out the factors which are to be considered in deciding to make, inter alia, a “water extraction licence decision”. Section 71A(1) of the Act defines “a water extraction licence decision” as a decision to which Part 6A of the Act applies. Section 71A(2)(a) provides that Part 6A applies to the “grant of a water extraction licence”. A “water extraction licence” is defined in s 4(1) as including, inter alia, “a licence under section 60 to take water from a bore”. Therefore, in exercising a function to grant a licence under s 60, the First Defendant was required to take into account any of the factors listed at 90(1)(a)-(k) which are relevant to the decision. This includes the following factor provided at s 90(1)(ab): “any water allocation plan applying to the area in question”.
h.The First Defendant's decision to grant the Licence was not in accordance with the WAP declared in respect of the Western Davenport Water Control District.
i.In granting the Licence, the Water Controller failed to assess the licence application against the WAP GDE Criteria, and instead assessed the licence application against criteria contained within a Departmental policy document titled “Guideline: Limits of acceptable change to groundwater dependent vegetation in the Western Davenport Water Control District” (Guideline).
j.The Defendant erred in failing to apply the WAP GDE Criteria in making the Purported Decision.
2. The Purported Decision involved a jurisdictional error because the Licence was granted subject to conditions under s 60(2) of the Act which operated to defer consideration of matters which, for the decision to have been lawfully made pursuant to s 30(3)(a)(ii) of the Act, were required to be determined prior to, or in the course of, making the Purported Decision.
Particulars
a.The Plaintiff refers to and repeats particulars (a) to (f) of Ground 1.
b.The First Defendant imposed a number of conditions on the Licence pursuant to s 60(2) of the Act. These conditions require the Licence holder to, inter alia,:
i.prepare for approval by the Water Controller a map (and spatial data), verified through suitable on-ground surveys, of groundwater dependent ecosystems in each landform on Singleton Station (NT Portion 653) in the Aeolian sandplain and alluvial plain areas shown in Figure 7.2 provided in Attachment A to the Licence (Condition CP5(a)(ii));
ii.prepare for approval by the Water Controller maps (and shapefiles) demonstrating the modelled spatial extent of predicted impact on groundwater levels (Condition CP5(b));
iii.prepare for approval by the Water Controller a revised version of the final bore field design (being Figure 53 in Attachment B to the Licence) or a revised pumping schedule and model pumping file for the bore field design, if the predicted impacts to groundwater levels exceed the limits established under, inter alia, the Guideline (Condition CP5(i)-(iv));
iv.undertake an assessment of the potential salinity impacts to the Land and Water Resource from water taken and used under the Licence and submit a report to the Water Controller (Condition CP6);
v.develop and submit for approval by the Water Controller, an adaptive management plan (Condition CP7);
vi.develop and submit for approval by the Water Controller a program to assess the Water Resources on the Land (Condition CP9); and
vii.develop and submit to the Water Controller a groundwater dependent Aboriginal cultural values impact assessment (Condition CP10).
c.In granting the Licence permitting extraction of 40,000 ML/year subject to the conditions identified above in particular (b), the First Defendant constructively failed to exercise her jurisdiction under s 60 of the Act in that she did not consider, and deferred consideration of:
i.the adverse effects likely to be created as a result of activities under the Licence within the meaning of s 90(1)(c); and/or
ii.whether or not the proposed extraction that was to be approved under the Licence accorded with the WAP.
3. The Purported Decision was legally unreasonable.
Particulars
a.The Plaintiff refers to and repeats particulars (a) to (f) of Ground 1.
b.On the material before the First Defendant, the Water Resources Division: Water Assessment Branch of the Department of Environment, Parks and Water Security (Department) had modelled drawdowns which significantly exceeded the WAP GDE Criteria. For example, in relation to the criteria at particulars (d)(i) and (ii) of Ground 1, modelling prepared by the Department identified a maximum drawdown of 50 m within the proposed extraction area: Groundwater extraction licence resource assessment: AG06221 (Singleton Station): Water Resources Division Technical Report p 18 [3.3.4].
c.On the material before the First Defendant, no reasonable decision-maker could be satisfied that the Proposed Decision was in accordance with the WAP.
d.Further and in the alternative, the First Defendant relied upon the Guideline on the premise that it constituted “new scientific knowledge” even though the Guideline: (a) was not, of itself, scientific knowledge; and (b) did not reference any specific scientific knowledge which was not available at the time the WAP was declared.
In their summary of the grounds relied on, Counsel for ALEC contend that the Minister erred in her decision to grant the licence in at least the three ways set out in the following paragraphs.[20]
First, it is said that the Decision failed to accord with specific drawdown limits identified in the WAP, which were intended to protect groundwater dependent ecosystems. Under s 90(1)(ab) Water Act 1992, the Minister was required to take the WAP into account, while s 22B(4) of the Act required that water resource management (including licensing decisions) be in accordance with the WAP. Rather than applying the WAP, the Minister chose instead to apply a Departmental policy document (the Guideline referred to in [11] above), developed in consultation with Fortune, which had no statutory significance under the Water Act 1992 and which was said to be “fundamentally inconsistent” with the WAP.
Second, it is said that the Minister erred in imposing various conditions precedent which operated to defer consideration of matters which, for the decision to have been lawfully made under s 30(3)(a)(ii) of the Act, were required to be determined prior to, or in the course of, making the purported decision. The result of the conditions precedent was that the Minister left for a later decision an important aspect of the proposal which could result in a significant alteration of the proposal. That was said to violate the principle of finality with respect to ambulatory conditions recognised in the long-standing Mison and Unley line of authorities.[21]
Third, it is said that the Decision was legally unreasonable “in that central planks of the analysis in support of the conclusions reached exhibited illogicality”, in particular, the Minister’s conclusion that her decision was consistent with the WAP was illogical. It is also said that those aspects of the Panel’s reasons (adopted by the Minister) which took the Guideline into account as ‘a relevant factor’ because it constituted ‘new scientific knowledge’ were also illogical on the evidence before the Panel and Minister.
The plaintiff MAC seeks an order in the nature of certiorari quashing the Licence bearing licence number WDCP 10358; alternatively, a declaration that the Licence is invalid insofar as it provides for any entitlement to take water in excess of 12,788 ML/year.
The grounds relied on by MAC are as follows:[22]
Grounds
Delegated decision-making
1. The first defendant (the Minister) failed to give proper consideration to relevant considerations under s 90 of the Water Act.
Particulars
On Thursday, 11 November 2021, the Minister was empowered by delegation to exercise powers under s 30(3) of the Water Act. On Monday, 15 November 2021, the Minister decided to grant the Licence. In her reasons, the Minister said she had reviewed and considered a significant volume of often technically complex materials.
Given the short time between delegation and decision, and the volume and technical nature of the materials, it may be inferred the Minister cannot have properly considered the s 90 factors.
2. The Minister’s decision to grant the Licence was seriously irrational as no rational Minister would have treated the s 90 considerations so irrationally.
Particulars
The plaintiff repeats the particulars to the preceding paragraph.
Conditions precedent
3.    The Minister failed to make a decision on the application as the conditions precedent leave open the possibility the proposal as carried out will be significantly different to the proposal the subject of the application.
Particulars
CP5, 7, 8, 9 and 10, read with the staging conditions, were imposed to address several risks and uncertainties identified by the Water Resources Review Panel. Depending on the information obtained in fulfilment of the conditions, and future decisions, it is possible the proposal as carried out will be significantly different to the proposal the subject of the application.
4.    Alternatively, the Minister failed to make a decision on the application to the extent the Licence provides for any entitlement to take water in excess of 12,788 ML/year as the conditions precedent leave open the possibility the proposal as carried out will be significantly different to the proposal the subject of the application.
Particulars
The plaintiff repeats the particulars to the preceding paragraph. In reaching the following conclusions, which were adopted by the Minister, the Panel affirmed it did not have necessary confidence in the volumes of water to be provided beyond stage 1. The Panel said:
·“It is the Panel's view that these risks and uncertainties need to be better defined before there can be confidence in the decision to provide the volumes of water that the Licence makes available to the proponent” (at [76])
·“entitlements beyond Stage 1 should be withheld until sufficient data has been gathered and analysed to enable more confidence in the understanding of the long-term aquifer behaviour and GDE response” (at [80])
·“In the Panel's opinion, the following is also necessary to reduce model uncertainty prior to the extraction of water for horticulture under this Licence:
·     A detailed assessment of the water resource on Singleton Station, including hydrogeological investigations at a local level, with a program of drilling and aquifer testing to obtain specific data on aquifer properties.” (at [53])
5.    The Minister failed to consider Aboriginal cultural values, a mandatory relevant consideration.
Particulars
Aboriginal cultural values were a mandatory relevant consideration under the Water Allocation Plan.
The Minister adopted the Panel's conclusion, as follows: “The Panel is not able to form a view on the significance of the information presented in [the Aboriginal cultural values report] but is of the opinion that a comprehensive cultural impact assessment is required prior to the extraction of any significant volumes of water on Singleton Station.”
Aboriginal cultural concerns were left to be addressed by conditions on the Licence instead of being taken into account when deciding whether or not a Licence should be granted.
Period of stage 1
6.    The Minister's reduction of the period of stage 1 of the Licence from the 5 years recommended by the Panel to 3 years was supported by no evidence.
Particulars
The Panel recommended the period of stage 1 be increased to five years “to enable adequate assessment of aquifer behaviour and GDE condition" (at [79]-[80]). The panel comprised experts. Further, that period was supported by a Departmental submission to the Panel about the data to be gathered over the next 5 years and expert evidence relied on by the plaintiff.
The Minister is not an expert. She identified no evidence to support her decision to reduce the period of stage 1.
7.    The Minister's reduction of the period of stage 1 of the Licence from the 5 years recommended by the Panel to 3 years was seriously irrational.
Particulars
The plaintiff repeats the particulars to the preceding paragraph.
Procedural fairness
8.    The Minister failed to afford the plaintiff procedural fairness by failing to provide it with (a) all material relied on by the Minister and (b), additionally, the groundwater model.
Particulars
The Minister relied upon material not available to the plaintiff, particularly “the information considered by the Review Panel, and its subsequent clarification of the requirements of a cultural values impact assessment”; and “the response by the Licence Holder to the Notice of consideration of amended conditions associated with water extraction licence WDPCC100000 dated 12 November 2021”.
Further, the plaintiff requested all of the digital files comprising the groundwater model so it could analyse that model and undertake spatial predictive uncertainty analysis of the model. The plaintiff was denied the opportunity to undertake this analysis and present the results to either the Panel or the Minister.
Had the groundwater model been given to the plaintiff, it would have presented a report to the Controller, and the Panel, and the Minister about the spatial predictive uncertainty of the model and that report would have been directly relevant to CPs 5 to 10.
Had the “subsequent clarification of the requirements of a cultural values impact assessment” been given to the plaintiff, it would have made submissions to the Minister about appropriate licence conditions for the process for, and terms of reference of, the assessment.
Had the “response by the Licence Holder to the Notice of consideration of amended conditions” been given to the plaintiff, it would have made submissions to the Minister about the scientific basis for the period of stage 1.
Licence period
9. The Minister erred in law by failing to comply with s 60(4) of the Water Act (as in force on 15 November 2021) before granting the Licence for a period exceeding 10 years.
Particulars
The Licence was not for a purpose, nor did it meet criteria, that the Minister by Gazette notice specified as justifying a longer period, as no purpose or criteria had been notified at the time of the grant of the Licence.
Even if s 60(4)(b) applies to a decision made by the Minister, the Controller had not herself been satisfied, as she did not herself consider, that special circumstances justified a licence period exceeding 10 years. Further, nothing in the Review Panel’s reasons, or the Minister’s reasons, addressed the requirements of s 60(4)(b).

It can be seen that there is some common ground in the contentions of the plaintiff parties.
ALEC Ground 1
Ground 1 in the ALEC proceeding relies on the asserted fact that the Decision to grant the Licence was not in accordance with the WDWAP, in that the Minister did not apply the groundwater dependent ecosystems (GDE) impact criteria in the WDWAP.
Part 8.3.1 of the WDWAP states, inter alia, “Groundwater extraction licence applications should demonstrate compliance with the criteria laid out in this WDWAP. Part 8.2 of the WDWAP, headed “Protection of environmental and cultural values”, contained Part 8.2.1 in the following terms:
8.2.1 Terrestrial vegetation groundwater dependent ecosystems
Proposed extraction should not result in a change to groundwater conditions beyond the following limits within the GDE protection area (Figure 11) unless it can be shown that the vegetation is not accessing groundwater. Assessment of compliance with these criteria should be based on groundwater modelling giving consideration to the cumulative effect of all approved extraction.
Limits to change in groundwater levels within the GDE protection area
·Modelled extraction does not cause the maximum depth to water table to exceed 15 metres below ground level
·Modelled extraction does not result in the maximum depth to water table declining by more than 50% below the levels that would be expected under a natural baseline scenario (no pumping scenario)
·Modelled extraction does not result in a rate of groundwater drawdown that exceeds 0.2 metres/year.
The Department of Environment and Natural Resources will monitor groundwater drawdown and the health and condition of a set of GDE reference sites to monitor the effectiveness of GDE protection approaches and refine the understanding of GDE groundwater interactions and dependence. Results will be reported annually via the integrated annual report on monitoring and compliance. Where groundwater drawdown trigger levels are exceeded or unacceptable impacts from groundwater drawdown on GDE health are observed (i.e. change in morphology, composition or loss of function) this will trigger an adaptive management response. ...
Counsel for ALEC contend that, on the materials before the Controller and Minister, it was clear that Fortune’s proposal to extract 40,000ML from the GDE protection area could not satisfy the Part 8.2.1 criteria. They submit that the Minister failed to assess Fortune’s application against those WDWAP GDE criteria, and instead assessed the application against the criteria in the Guideline document referred to in [11] above. They submit, inter alia, that the Guideline adopted drawdown thresholds which were radically less rigorous than those adopted in the WDWAP.[23] The Minister is thereby said to have failed to comply with s 22B(4) and (further and alternatively) with s 90(1)(ab) Water Act 1992, with the consequence that the Decision was affected by jurisdictional error: the Minister exceeded the limits of the decision-making authority conferred by the statute in reaching her decision.[24]
I set out the substance of s 22B(4) in [8] above. The subsection requires that water resource management in a water control district be in accordance with the declared water allocation plan. Counsel for ALEC point out that the phrase ‘water resource management’ is not defined in the Act, but contend that “within the scheme of the Act [it] clearly embraces a decision to grant a groundwater licence”.[25]
Section 90(1) Water Act 1992 reads, relevantly, as follows:
90Factors to be considered
(1)In ... making a water extraction licence decision, the Controller must take into account any of the following factors that are relevant to the decision:
(a)the availability of water in the area in question;
(ab)any water allocation plan applying to the area in question;
(b)the existing and likely future demand for water for domestic purposes in the area in question;
(c)any adverse effects likely to be created as a result of activities under the ... licence ... on the supply of water to which any person other than the applicant is entitled under this Act;
(d)the quantity or quality of water to which the applicant is or may be entitled from other sources;
(e)the designated beneficial uses of the water and the quality criteria pertaining to the beneficial uses;
(f)the provisions of any agreement made by or on behalf of the Territory with a State of the Commonwealth concerning the sharing of water;
(g)existing or proposed facilities on, or in the area of, the land in question for the retention, recovery or release of drainage water, whether surface or sub-surface drainage water;
(h)the adverse effects, if any, likely to be created by such drainage water resulting from activities under the licence on the quality of any other water or on the use or potential use of any other land;
(j)the provisions under the Planning Act 1999 relating to the development or use of land in the area in question;
(k)other factors the Controller considers should be taken into account or that the Controller is required to take into account under any other law in force in the Territory.
In relation to s 90(1), a water extraction licence is for present purposes a licence under s 60 of the Act to take water from a bore. The expression ‘a water extraction licence decision’ should be read accordingly. As mentioned in [25], the Water Act 1992 does not prescribe independent criteria to be applied by the Minister on a review of the Controller’s decision. Therefore, the matters which the Minister was required to take into account in carrying out the review and making a water extraction licence decision were those s 90(1) factors which were relevant to the decision. The Minister was required by s 90(1)(ab) to take into account the WDWAP (on the basis that it was relevant to the Minister’s decision, and that is common ground in ALEC’s proceeding) but was also required to take into account the other specified factors as well as the unspecified factors referred to in s 90(1)(k) as: “other factors the [Minister] considers should be taken into account ...”. The Minister was also required to take into account comments made by interested persons in response to the Controller’s notice of intention to make a water extraction licence decision published pursuant to s 71B(1) of the Act. In my opinion, that requirement arises by implication from s 71C(2) and s 71E(4)(a) of the Act which required that the review decision state or explain the way in which the Minister had taken into account comments made (to the Controller) in accordance with s 71B(4) as well as “any relevant factors mentioned in s 90(1)”.
In my opinion, the statutory requirement to ‘take into account’ the factors listed s 90(1) of the Act is a requirement to give consideration to them, that is, to engage in an “active intellectual process” directed at those factors,[26] or at least at those factors relevant to the decision. There are 11 factors specified in s 90(1). There is no requirement that any one or more of the factors are fundamental considerations in the water extraction licence decision.[27] Moreover, the sub-section does not provide an exhaustive list of the factors that the Minister must take into account as relevant in any given case, since s 90(1)(k) allows the Minister to take into account ‘other factors’ which the Minister considers should be taken into account. There is nothing in the language of s 90(1) which requires that the Minister give particular weight to any one factor or group of factors nor is there any indication that one or more factors are to be accorded primacy. This is unsurprising, given that the decision to grant a water extraction licence is multifactorial and involves the balancing of a range of relevant but possibly disparate considerations.
In general, absent any statutory or contextual indication of the weight to be given to the factors which a decision maker is required to take into account, it is for the decision maker to determine the appropriate weight to be given to them.[28] The weight to be given to any one factor or group of factors may well vary from case to case. Moreover, the decision maker is not even obliged to take into account all of the s 90(1) factors, since the obligation is to take into account only those “that are relevant to the decision”.
In relation to s 90(1)(ab), I accept the submission of counsel for the Minister that the language employed is very different to a requirement that the decision maker is “bound by”, “must follow” or “must adopt” the provisions of an applicable water allocation plan. I would add that there is no requirement that a water extraction licence decision must accord with, or not be inconsistent with, a water allocation plan applying to the area in question. The purpose of the statutory requirement that the decision maker take into account any applicable water allocation plan (in addition to many other factors) is to allow the decision maker to be guided by any such plan but not to be fettered in a way which would preclude consideration of a water extraction licence application which did not meet the criteria set out in the plan.
In the present case, considerable leeway should be afforded to the Minister in relation to determining the validity of the impugned decision to grant a water extraction licence, not only because the factors to be taken into account must pass through the filter of relevance, but also because the weight to be given to those factors is then for the Minister to determine. Further, the range of factors which the Minister must take into account is substantially expanded by the inclusion of the “other factors” (referred to but not expressly specified in s 90(1)(k)) which the Minister considers “should be taken into account”. My conclusion is that the Minister has a wide discretionary power under s 90(1) Water Act 1992.
The question to be considered is whether and to what extent s 22B(4) of the Act limited that wide discretionary power. In other words, did the requirement that ‘water resource management’ be in accordance with the WDWAP oblige the Minister to refuse a water extraction licence application in circumstances where the proposal did not fully or substantially accord with the water allocation plan.
The contentions put on behalf of ALEC depend on whether s 22B(4) compelled the Minister (who was required under s 90(1)(ab) to “take into account” the WDWAP) not merely to consider the WDWAP but to act in accordance with all of the principles and requirements stated in it. The underlying thrust (or at least the logical extension) of ALEC’s contentions is that the WDWAP has primacy in the exercise of the discretionary power under s 90(1) of the Act, such that there could be no lawful departure from its provisions.
Section 22B Water Act 1992 is in Division 1 (General Administration), one of several divisions within Part 3 (Administration). Sections 22A and 22B were inserted by the Water Amendment Act 2000.[29] Section 22B has remained substantially unaltered.[30] That section is concerned with water allocation plans and water resource management. In order to determine the meaning of the undefined phrase ‘water resource management’ in s 22B(4), it is appropriate to have regard to the legislative purpose, since a construction promoting the purpose or object underlying an Act is to be preferred to a construction that does not do so. It does not matter whether the purpose or object is expressly stated in the Act or not.[31]
A general statement of the purpose or object of the Water Act 1992 is set out at the head of the Act, before Part 1, in the following terms:
An Act to provide for the investigation, allocation, use, control, protection, management and administration of water resources, and for related purposes
There was no similar statement of the purpose or object set out in the Water Amendment Act 2000 (which enacted/inserted s 22A and s 22B). However, the purpose was stated by the Minister in his second reading speech, in which he also explained that the legislative changes drew upon five “fundamental principles which are at the core of government policy for sustainable use of water”. Relevant parts of the second reading speech are extracted below:[32]
The purpose of this bill is to amend the Water Act to provide a process for the allocation of water resources to beneficial uses, including the environment, and to enable trade in water licences.
... there is some urgency to implement this important legislative change so as to ensure that competition [policy] payments due to the Territory are not jeopardised.
The changes needed are not extensive, nor are they complex. They draw upon the fundamental principles which are at the core of government policy for sustainable use of water. These principles are:
·sustaining long term development of water resources, with water allocation always limited to sustainable yield and incorporating safety margins where there is uncertainty;
·ensuring environmental integrity, with water always allocated for water dependent ecosystems;
·planning in partnership with all legitimate stakeholders, with ultimate responsibility vested in government to allocate water for overall community benefit;
·providing security for enterprise development, with longer term water licences for business investment and planning; and
·optimising economic benefit, by allowing free market trading in water licences.
The Northern Territory is indeed fortunate in that our natural water resources are both plentiful and in excellent condition and hence available to support new development. We are determined that this will remain the case. The widespread over-exploitation and degradation suffered in southern states will not occur here.
The changes I will now outline are designed specifically to ensure that the Territory can build on its strong competitive advantages of unique environmental conditions and sustainable development potential.
Section 22 of the Act, which currently allows for water control districts to be declared, will be expanded to also allow for beneficial uses and water allocation plans to be declared. Simply put, water allocation plans share water resources among the mix of beneficial uses in water control districts. Identifying the mix of beneficial uses, and the preparation and operation of an allocation plan to share the available water between the mix of beneficial uses, will require input from water advisory committees appointed under section 23. ...
The water allocation planning process will also recognise the environment as a fundamental beneficial use and will always allocate a share of streamflow and groundwater to maintain the health of rivers and wetlands. Where water allocation plans are declared, the level of extraction through water licences will be limited to the sustainable yield of regional water resources, accounting for environmental allocation. All water use licences will now be issued for up to 10 years - they are currently 2 years. This will give water users greater surety to raise finance and make investment decisions. Water licences will also be able to be traded freely within the district, in accordance with the allocation plan. However, ‘use it or lose it’ rules will apply so that licences will be amended or revoked where water entitlements are not used. In conjunction with the ability to trade licences, this will ensure that water is used to best economic advantage.
I note the Minister’s reference to “the water allocation planning process”. The Minister’s explanatory speech identified the purpose or intended result of a declared water allocation plan as the appropriate sharing of available water resources in a water control district between the mix of beneficial uses in that district. That was consistent with (the subsequently enacted) s 22B(5) of the Act, which specified the objectives of a water allocation plan as ensuring that water would be allocated within the estimated sustainable yield to beneficial uses, and that the total water use for all beneficial uses would be less than the sum of the allocations to each beneficial use.[33] In my opinion, planning and management of the water resource in a water control district was and remains the meaning of ‘water resource management’.
The legislative history of s 90(1) does not support ALEC’s contentions. Immediately prior to 6 June 2000, s 90(1) specified factors or matters the same or substantially the same as those contained in the present paragraphs (a), (b), (c), (d), (e), (f), (g), (h)(j) and (k).[34] However, under s 90(1) as it then stood, they were matters the Controller “may take into account”. In contradistinction, s 90(1A) Water Act 1992 stated that the Controller “must take into account any water allocation plan applying to the area in question”.[35]
The Water Amendment Act 2007 made relevant amendments to s 90(1) and s 90(1A).[36] The specified factors in s 90(1) became matters which the Controller was obliged to take into account (“the Controller must take into account ...”), subject to relevance (“any of the following factors that are relevant to the decision”). Further, the factor previously contained in s 90(1A) was now part of s 90(1), as the newly inserted s 90(1)(ab): “any water allocation plan applying to the area in question”.
The effect of the 2007 amendments was that the requirement for the Controller to take into account any applicable water allocation plan, which had previously been an independent mandatory consideration under s 90(1A), arguably predominant over the s 90(1) discretionary factors, was now on ‘equal footing’ with the s 90(1) factors, and, like them, subject to relevance. Further, the factor specified in s 90(1)(k) which the Controller was required to take into account (“must take into account”) was amended to read: “(k) other factors the Controller considers should be taken into account or that the Controller is required to take into account under any other law in force in the Territory”.
I refer to the conclusion stated in [54] above. In my opinion, s 22B(4) Water Act 1992 has a different sphere of operation to that contended for by ALEC. It is not directed to the weight to be given to a water allocation plan in a water extraction licence decision, which is addressed under s 90(1) of the Act. It does not predetermine a water extraction licence decision so as to prohibit any departure from the provisions of a declared water allocation plan. If that were not so, it would be contrary to the wide discretion given to the Minister under s 90(1) of the Act, discussed in [48] above.
Given my conclusions in relation to (1) the meaning of the phrase ‘water resource management’ in s 22B(4) Water Act 1992 and (2) the nature of the requirement to ‘take into account’ various factors under s 90(1) of the Act, ALEC’s first ground of review must fail. In making the water extraction licence decision, the Minister did not have a statutory obligation to “comply with” s 22B(4) of the Act. Further, although the Minister had a statutory obligation under s 90(1)(ab) of the Act to take into account the WDWAP, the Minister did not have a statutory obligation to “comply with” the WDWAP in the sense asserted by ALEC. More specifically, with respect to particular d. of ground 1, the Minister did not have a statutory obligation to apply and make a licence decision in strict accordance with Part 8.2.1 of the WDWAP. Finally, in relation to its criticism of the Minister for taking into account the Guideline,[37] and giving the Guideline greater weight than the WDWAP, ALEC has not established that the Minister was not entitled to take into account the Guideline pursuant to s 90(1)(k) as a factor the Minister considered should be taken into account.

There is a further matter I should mention in this context. As I have explained, the complaint of ALEC is that the Minister failed to comply with s 22B(4) of the Act by making a licence decision which did not accord with Part 8.2.1 of the WDWAP. It does not allege that the Minister did not take into account the WDWAP. Indeed, it could not do so in circumstances where the Guideline at section 3.1 set out the substance of Part 8.2.1 of the WDWAP in relation to limits to change in groundwater levels within the GDE protection area, as follows:
The Western Davenport Water Allocation Plan (the Plan) has an objective that detrimental impacts on water dependent ecosystems as a consequence of consumptive use will be avoided as far as possible. More specifically, the Plan sets limits for change in groundwater conditions within the GDE protection area as follows (refer section 8.2.1)
·Modelled extraction does not cause the maximum depth to water table to exceed 15 m below ground level
·Modelled extraction does not result in the maximum depth to water table declining by more than 50% below the levels that would be expected under a natural baseline scenario (no pumping scenario)
·Modelled extraction does not result in a rate of groundwater drawdown that exceeds 0.2 m/year.
For reasons explained at section 3.2, the Guideline adopted different criteria to those in Part 8.2.1 of the WDWAP, based on additional research, modelling based on satellite imagery, on-ground sampling, and modelling/mapping on a regional scale based on field investigations. The Guideline recognised that the purpose of the WDWAP was to provide for consumptive use of groundwater and, in that context, accepted that some impact on GDE’s was unavoidable, albeit “within carefully managed levels”. The Guideline at section 4 set out a determination made by the Department of Environment and Natural Resources “that 70% of the current extent of GDE’s in the Western Davenport Water Control District should be protected from negative impact”.[38] In relation to those GDEs to which the 70% threshold might apply, the Guideline proposed, in effect, that it should apply to the more ecologically valuable GDEs, listed as those that are “large in individual extent”; that are in good condition (having regard to the impacts such as grazing, fire, weeds); that provide habitat for threatened or rare species; that have relatively high species richness; that have relatively complex vegetation structure; that represent the range of environmental variation in ecosystems found in the region; and those that are “important in maintaining connectivity between habitat patches across the landscape” (I think this meant wildlife corridors). The Guideline stated that application of the suggested 70% threshold “should result in protection of a high proportion of groundwater dependent ecosystems having high densities of plants of Aboriginal cultural value”.
The Guideline at section 4.1 set out a differential approach to determining the potential for negative impact on groundwater dependent vegetation, depending on whether the vegetation was over ‘shallow groundwater’ (less than 10 m deep) or ‘deeper groundwater’ (10-15 m deep).
For GDEs over shallow groundwater, the Guideline stated that there would be “potential for negative impact” if modelled extraction showed the possible occurrence (“may occur”) of one or more of the following: (1) the maximum depth to water table exceeds 10 m below ground level; (2) the maximum depth to water table declines by more than 50% below the levels that would be expected under a natural baseline (no pumping) scenario; and (3) modelled extraction results in a rate of groundwater drawdown that exceeds 0.2 m/year.
For GDEs over deeper groundwater, the Guideline stated that there would be “potential for negative impact” if modelled extraction showed the possible occurrence (“may occur”) of one or more of the following: (1) the maximum depth to water table declines by more than 35% below the levels that would be expected under a natural baseline (no pumping) scenario; and (2) modelled extraction results in a rate of groundwater drawdown that exceeds 0.2 m/year.
It can be seen that the Guideline provided an explanation or justification for its stated criteria for determining the potential for negative impact on groundwater dependent vegetation differing from the criteria in Part 8.2.1 of the WDWAP.
The fact that the Minister ultimately decided that different criteria to those set out in Part 8.2.1 should be applied does not mean that she did not ‘take into account’ the WDWAP. Not only did the Minister take into account the Guideline (which itself set out and engaged with Part 8.2.1), but the Minister expressly dealt with the WDWAP, in particular Part 8.2.1, where she summarised the matters considered by the Controller, including the WDWAP and the Guideline, and noted that the Controller had taken into account the risk to GDEs being within thresholds outlined in the Guideline. The Minister also referred to Part 10.1 of the WDWAP for an explanation of the term ‘adaptive management framework’, the stated tools of which included licence conditions, policy, water allocation plans, monitoring programs, research and investigations, compliance programs and modelling. In that context, the Minister adopted the opinion of the Review Panel that the Controller’s use of licence conditions (including several conditions precedent, to be satisfied before extraction of water under the licence were to proceed) was a reasonable measure to manage risk and uncertainty.[39] The Controller had observed that potential impacts to GDEs (and other water users) could be managed by licence conditions which (1) staged the release of water and (2) required implementation of a monitoring and adaptive management plan.[40] The Minister stated in her reasons that the licence contained a number of conditions precedent which had to be addressed prior to the extraction of water under the licence, which the Review Panel considered appropriate to manage risk and uncertainty.
The proposition that Part 8.2.1 of the WDWAP had some binding regulatory force, or even some derivative statutory force via s 22B(4), as ALEC contends, becomes even more improbable when regard is had to the language used. It is apparent that the language of the WDWAP is in the nature of guidance, instruction and recommendation. For example, in Part 8.2.1, relied on by ALEC, the word ‘should’ is used: “Proposed extraction should not result in a change to groundwater conditions ...” and “Assessment of compliance with these criteria should be based on groundwater modelling”. The use of the word ‘should’, rather than ‘must’, denotes a non-regulatory standard which is clearly not mandatory.[41] That conclusion is confirmed by the following extract from Part 1.1.2 of the WDWAP, dealing with ‘Groundwater resources’ (underline emphasis added):
Groundwater allocations to the beneficial uses of environment and non-consumptive cultural [uses] are intended to protect GDEs and cultural values relying on groundwater. In addition to this allocation, the WDWAP recommends the following limits to change in groundwater conditions at GDEs caused by proposals to extract groundwater:
·The maximum depth to groundwater does not exceed 15 metres.
·The magnitude of change in the depth to groundwater is not more than 50%.
·The rate of change of the groundwater table is not more than 0.2 metres per year.
It is tolerably clear that this was a reference to the limits to change in groundwater levels within any GDE protected area, and is referring to the same matters as Part 8.2.1, albeit expressed slightly differently.
The further matters discussed in [60] to [68] confirm the conclusion I stated in [59], that ALEC’s first ground of review must fail.
ALEC Ground 2
As explained in [34], this ground asserts the impermissible deferral of mandatory relevant considerations. Counsel for ALEC submit that this is apparent from the conditions set by the Controller, and adopted by the Minister subject to the amendments and the additional conditions precedent referred to in [27] above.
The conditions precedent (“CP”) clauses set out conditions which had to be fulfilled in order for the entitlements in the staging conditions of the licence to take effect. The first staging condition (SC 1) included a Table (reproduced below) and provided that, subject to the Licence, Fortune would have an entitlement to take water from a bore for the stage specified in Column 1 of the Table, in the amount specified in Column 2, for the period specified in Column 3 and from the bore field specified in column 4.
Table 2 Staged entitlement

Column 1

Column 2

Column 3

Column 4

Stage

Entitlement ML/yr

Period

Bore Field (Block)

1

12 788

For a period of 3 years from the date the Controller approves, in accordance with CP 2, that the Conditions Precedent have been satisfied.

Block 1, 2 and 3

2

22 845

For a period of 2 years from the date the Controller approves proceeding from Stage 1 to Stage 2.

Block 1, 2, 3, 4 and 5

3

31 779

For a period of 2 years from the date the Controller approves proceeding from Stage 2 to Stage 3.

Block 1, 2, 3, 4, 5, 6 and 7

4

40 000

For the remaining duration of the licence from the date the Controller approves proceeding from Stage 3 to Stage 4.

Block 1, 2, 3, 4, 5, 6, 7, 8 and 9

The staging conditions provided that Fortune required approval in writing from the Controller to proceed from one stage to the next stage (express mention was made about proceeding from Stage 1 to Stage 2).[42] In order to obtain such approval, Fortune was required to provide to the Controller a ‘stage completion report’ prepared by a suitably qualified person which demonstrated, inter alia, that the relevant bore field had a production rate capable of delivering the entitlement specified for the approved stage and that, based on results from the monitoring program, the volume of water actually taken in the approved stage and the proposed volume of water to be taken in future stages met the objectives of the most recently approved adaptive management plan.
In imposing staging conditions, the Minister adopted the approach taken by the Controller, as follows:[43]
... the Controller established staging conditions limiting the volume of water that could be taken in any period to allow for the impacts of the water taken in the previous stage/s to be monitored in accordance with the approved monitoring program, to determine that the extraction is behaving as predicted and is managed within the defined thresholds that meet the environmental and cultural objectives outlined in approved adaptive management plan.
The content of the conditions precedent is set out in [75] to [80] below.
Condition CP 5(a)(ii) of the Licence required that Fortune prepare for approval by the Controller a map (and spatial data), verified through suitable on-ground surveys, of the groundwater dependent ecosystems in each landform on Singleton Station in the aeolian sandplain and alluvial plain areas shown in an attachment to the licence.
Condition CP 5(b) of the Licence required Fortune to prepare for approval by the Controller maps (and shape files) demonstrating the modelled spatial extent of predicted impact on groundwater levels.
Condition CP 5(c) of the Licence required Fortune, in the event that the extent of predicted impact mapped in accordance with condition CP 5(b) exceeded, relevantly, the limits outlined in the Guideline, to prepare for approval by the Controller a revised version of the bore field design set out in an attachment to the Licence, and a model pumping file (pumping schedule) for the revised bore field design, together with maps (and shape files) based on the revised bore field design demonstrating the modelled spatial extent of predicted impact to, relevantly, the groundwater dependent ecosystems mapped in CP 5(a) at 5 yearly intervals for a minimum of 40 years to meet the protection limits outlined in the Guideline.
Condition CP 6 required Fortune to undertake an assessment of the potential salinity impacts to the land and water resource from water taken and used under the Licence and to submit a report to the Controller. One of the matters required to be included in the assessment and report was the management of salinity impacts in order to maintain groundwater quality and to prevent or minimise adverse effects on the potential use of any other land.
Condition CP 7 required Fortune to develop and submit for approval by the Controller an adaptive management plan which had to include “clear and measurable objectives” which, inter alia, would achieve or reduce the predicted impact on groundwater levels determined under condition CP 5, and which would also protect 70% or more of the groundwater dependent ecosystems in each of the two major landform classes.[44] Fortune was required to prepare the adaptive management plan in consultation with the Department. Condition CP 7 was very detailed in terms of the matters to be dealt with in the proposed adaptive management plan, and required that the plan include “quantitative triggers and limits which can be used to initiate adaptive management actions” when, for example, groundwater level response to water taken under the Licence deviated from the predictions mapped in accordance with condition CP 5 and/or if impact on the health of groundwater dependent ecosystems was measured or predicted to exceed 30% of the extent of groundwater dependent ecosystems in each of the two major landform classes as determined under CP 5.[45]
Condition CP 8 required Fortune to develop and submit for approval by the Controller a monitoring program to assess the impact of water taken under the Licence on groundwater levels, on the health of groundwater dependent ecosystems mapped in accordance with CP 5, and on other uses of the water resource. The requirements for the monitoring program were set out in detail.
As mentioned in [27] above, the Minister imposed conditions CP 9 and CP 10 which were additional to those imposed by the Controller. The inclusion of both conditions was as a result of the report of the Review Panel, as the Minister explained in her reasons:[46]
By granting the licence with additional conditions, I accept the view of the Review Panel for the reasons it has given that further assessment of the water resources on Singleton Station is required and have established a new condition precedent, CP 9, which requires the licence holder to develop and submit for approval by the Controller a program to assess the water resource on the land which is to incorporate a drilling program, including both production and monitoring bores; verification of the stratigraphy of the subsurface of the land; identify the aquifers; verify their properties and quantify their yields; and determine interconnectivity.
I have also considered the issues raised by Reviewing Persons, regarding impact on cultural values from the activities under the licence and I accept the views of the Review Panel in that regard. For the reasons the Review Panel has given I have determined to add a new condition precedent, CP 10, which requires that the licence holder must develop and submit to the Controller a groundwater dependent Aboriginal cultural values impact assessment ...
Condition CP 9 required Fortune to develop and submit for approval by the Controller a program to assess the water resource under which, amongst other things, aquifers were required to be identified, the interconnectivity between aquifers determined, and aquifer yields quantified by pumping tests of at least 48 hours of constant discharge with a recovery period of 24 hours or 95% recovery to initial groundwater levels. The program was required to be implemented following the Controller’s approval.
Condition CP 10 required Fortune to develop and submit to the Controller “a groundwater dependent Aboriginal cultural values impact assessment” prepared by a suitably qualified professional, which had to identify, map and document the cultural values of Aboriginal people which would be impacted by groundwater extraction under the Licence and to identify reference points to be used in modelling such impacts and specify monitoring parameters, trigger values and limits for the reference points which could be used to initiate actions under an adaptive management framework.
I made brief reference in [66] above to the manner in which the Minister took into account the WDWAP, the Guideline, the Controller’s reasons and the report of the Review Panel. Having considered the detail of the conditions precedent, and having analysed the Minister’s reasoning, I am satisfied that consideration was given to the specific issues of environmental impact and Aboriginal cultural values, as explained in [85] to [90] below.
In relation to condition precedent CP 5, the Controller had considered the predicted impacts of groundwater extraction on GDEs based on a modelled distribution of GDE’s in the District at the regional and property levels, and was satisfied that the total negative impact remained below the 30% threshold in the Guideline. The Review Panel report stated that information provided to the Panel demonstrated that the Guideline thresholds were based on detailed scientific investigations and assessments carried out since the WDWAP had been declared, and considered that it was appropriate for the Controller to take the Guideline into account under s 90(1)(k) of the Act.[47] The Minister adopted that approach. There was no failure to consider the impact on GDEs.
In relation to condition precedent CP 6, the Controller had addressed the salinity impacts of the proposed extraction and use of water under the Licence. She identified a reduced risk of salinity problems because, in the sandy and highly permeable sandplain soils on which the proposed extraction activity would take place, salts would flush beyond the root zone.[48] The Controller nonetheless acknowledged that there was uncertainty as to the effect on the underlying groundwater resource, and imposed specific conditions under the licence to examine and address any adverse impacts from salinity. The Review Panel made a specific recommendation that there be a detailed assessment and investigation of salinity risks prior to extraction of groundwater, as outlined in the Controller’s decision. Condition precedent CP 6 adopted that recommendation.
In relation to condition precedent CP 7, the Controller had considered that the scientific understanding of the water resource and predicted impacts of the proposed groundwater extraction were moderately well-established. However, as the Controller acknowledged, the modelled data relied on could be influenced by assumptions and predictions and she therefore determined that the models and predictions should be tested as extraction went ahead. In considering the use of an adaptive management framework to manage uncertainty and risk, the Review Panel accepted that the Controller’s approach was reasonable,[49] and the Minister adopted this approach.[50]
In relation to condition precedent CP 8, the Controller had considered that the potential for any adverse impact of groundwater extraction, or departure from modelled predictions, could be monitored and addressed by conditions requiring Fortune to report on its water usage; monitoring the effects on groundwater levels and the potential effect on other users, following which “any adverse effect could be addressed through the implementation of an adaptive management plan”.[51] In this respect also, the Review Panel accepted that the Controller’s approach was reasonable, and the Minister adopted that approach by the very detailed CP 7 summarised in [79] above.
In relation to condition precedent CP 9, the Controller had determined to grant the licence having assessed the water resources in the District, including the availability of groundwater, the impacts of groundwater extraction and the effect of groundwater extraction under the proposed licence on the supply of water to other users.[52] The Review Panel then suggested that, prior to the extraction of water, a detailed assessment be undertaken of the water resource on Singleton Station, to include hydrogeological investigations at a local level to verify the modelled outputs and reduce model uncertainty.[53] The Minister accepted the recommended approach, and CP 9 was the result.

[22] Further amended originating motion between parties, annexure “KOB 59” to the affidavit of Kate O’Brien affirmed 5 September 2022.

[23] Outline of submissions, 26 July 2022, par 59. The preceding part of that submission read as follows: “Whereas the WAP sought to meet the environmental water requirements of water dependent ecosystems, the Guideline arbitrarily stated (without articulating any justification, by reference to scientific evidence or otherwise) that 30% of GDEs did not need to have their water requirements met”.

[24] Counsel for ALEC rely on MZAPC v Minister for Immigration and Border Protection [2021] 95 ALJR 441, at [29] per Kiefel CJ, Gageler, Keane and Gleeson JJ. See submissions, par 53.
As to the Minister’s asserted reliance on the Guideline, counsel for ALEC rely on the decision of Gleeson CJ in NEAT Domestic Trading Pty Ltd v AWB Limited (2003) 216 CLR 277 at [24] for the proposition that a (Departmental) policy must be (1) consistent with the statute under which the relevant power is conferred and (2) not such as to preclude the decision-maker from taking into account relevant considerations or as to involve the decision-maker in taking into account irrelevant considerations.

[25] Outline of submissions, par 8.

[26] DVO16 v Minister for Immigration and Border Protection & Anor [2021] HCA 12; 273 CLR 177 at [12], per Kiefel CJ, Gageler, Gordon and Steward JJ, citing Minister for Home Affairs v Ogawa (2019) 269 FCR 536 at [96]-[101].

[27] Cf. The Queen v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, where Mason J held (at 329) that the requirement to “have regard to costs necessarily incurred in providing nursing home care in the nursing home” meant that the decision maker had to give weight to those costs as a fundamental element in making his determination, inter alia, because it was the only matter explicitly mentioned as a matter to be taken into account. See also the discussion in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [54] per Sackville J.

[28] Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41, per Mason J.

[29] Water Amendment Act 2000, Act 20/2000, s 5. Originally, s 22A contained only the provision which is now s 22A(1).

[30] The present s 22B(7) was enacted subsequently.

[31] Interpretation Act 1978 (NT), s 62A. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [4], [5], per French CJ.

[32] Northern Territory, Parliamentary Debates, Legislative Assembly, 2 March 2000, Hansard pp 5340 – 5341 (Minister Daryl Manzie). Underline added.

[33] Water Act 1992, s 22B(5)(a) & (b). The current paragraphs (a) and (b) of s 22B(5) are the same or substantially similar to those inserted by the Water Amendment Act 2000.

[34]Section 90(1)(k) was in slightly different terms: “(k) all other matters the Controller considers relevant in making the decision or which he or she is required by or under any other law in force in the Territory to take into account.”

[35] That mandatory requirement had been inserted by the Water Amendment Act 2000, Act 20/2000. Subsection (1A) read as follows: “In addition to subsection (1), in deciding whether to grant a licence under section 45 or 60, the Controller must take into account any water allocation plan applying to the area in question.” [underline emphasis added].

[36]Water Amendment Act 2007, s 7.

[37] The ‘Guideline’ document is referred to in [11] above.

[38] The 70% threshold applied within each of the two major landform classes in the Western Davenport Water Control District, identified as ‘aeolian sand plain’ and ‘alluvial plain’.

[39]Review Panel report, par 71, under heading ‘Use of Adaptive Management Framework to manage uncertainty and risk’: “... the Controller’s approach to dealing with these aspects as Conditions Precedent is reasonable. The risks ... associated with water extraction and water extraction cannot occur under this Licence until the Conditions Precedent have been dealt with and approval is granted to proceed.” Further, at par 75: “The WAP discusses the merits of adaptive management where there is uncertainty and enables the use of an adaptive management framework for the regulation of water extraction. ... incorporating an adaptive management framework into licence conditions is consistent with the WAP and appropriate for achieving the objectives of enabling water extraction for consumptive use while meeting the environmental water requirements of non-consumptive uses”.

[40]Controller’s decision, par 124(c). The Controller then observed, at par 125, that a water extraction licence and its conditions were one element of a ‘dynamic adaptive management approach’ to water resource management. She referred in particular to conditions precedent, to give an applicant the opportunity to resolve uncertainties associated with (1) the location and types of GDEs and (2) salinity and groundwater quality, with conditions precedent then requiring an applicant to develop a monitoring program and an adaptive management plan to ensure that environmental objectives for the management zone were being met. The Controller also referred to staging conditions which would limit the volume of water that could be taken in a period, which would require the holder of the licence to demonstrate that the predicted impacts to GDEs did not exceed the thresholds outlined in the Guideline.

[41] Section 8.2.1 is extracted in [40] above.

[42] Staging condition SC 2.

[43] Minister's reasons, p 1686 of the Jungfer affidavit. The reference was to par 54 of the Controller's decision, p 188 of the Jungfer affidavit.

[44] The 70% threshold was derived from the Guideline. See the discussion in [61] above.

[45]Condition CP 7(e)(i) & (iii).

[46]Minister’s reasons, p 1692-3 of the Jungfer affidavit.

[47] Review Panel Report, pars 45 and 46, p 76 of the Jungfer affidavit. The Panel refrained from providing a legal opinion in relation to the Controller's reliance on the Guideline, which was appropriate given the Panel's function.

[48] Controller’s decision, par 82, p 191 of the Jungfer affidavit.

[49] Review Panel Report, par 71, p 81 of the Jungfer affidavit. It may be noted that the Review Panel at par 76 referred to the challenge that the adaptive management plan would rely on information that would only become available once extraction commenced, and so the volume of water available for extraction, and the period of the entitlement, should be commensurate with the risks and uncertainties around aquifer response and GDE impact that are regulated through the adaptive management framework.

[50] Minister’s reasons, pp 1689-1690 of the Jungfer affidavit. The Minister made specific reference to the concerns identified by the Review Panel at par 76 of its report, at p 1690 of the Jungfer affidavit.

[51] Controller’s decision, par 73, p 190 of the Jungfer affidavit. In this context, it may be noted that Part 8.2.3 of the WDWAP included the following recommendation: “Relevant licences should contain clauses that allow the Controller of Water Resources to direct that corrective actions (e.g. changed pumping regimes) be employed, or otherwise amend, modify or revoke a licence, where monitoring suggests exceedance of trigger levels or unexpected and unacceptable impacts”.

[52]Controller’s decision, starting at p 185 of the Jungfer affidavit, pars 27-33, 40-46 and 60-74.

[53]Review Panel report, par 53, p 78 of the Jungfer affidavit.

[54]See [19] and [20] above in relation to Ms Jungfer’s clarification of the Review Panel’s recommendation that a comprehensive cultural impact report be obtained.

[55]Minister’s reasons, p 1687 of the Jungfer affidavit.

[56] Outline of submissions, 26 July 2022, par 65. Footnote 110 to par 65 referred to the following authorities: Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332 (Wells J); Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 at 86 (Cripps CJ of LEC); Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 (Priestly JA, Clarke and Meagher JJA agreeing); South of Perth Yacht Club Inc v Jacob [2016] WASC 160 at [52] (Chaney J); Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd (2017) 27 Tas R 405 at [99]-[106] (Porter JA, Pearce and Brett JJ agreeing); Lester Land Holdings Pty Ltd v Development Assessment Commission (2020) 243 LGERA 221 at [241]-[247] and [291] (Parker J); Corporation of the City of Norwood, Payneham and St Peters v Minister for Infrastructure and Transport [2021] SASC 97 at [241] (Parker J).

[57] Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17 at [15].

[58] Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737A, per Priestley JA.

[59]Ibid at 740B, per Clarke JA.

[60] Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301 at [154] per Gilmour, Foster and Barker JJ.

[61] Ministerial Briefing, Jungfer affidavit, pp 165-167. The briefing was in relation to the Minister's opinion pursuant to s 60(4) Water Act 1992 (as it then stood) in relation to special circumstances justifying a longer term licence.

[62] First defendant’s written submissions, 16 August 2022, pars 78-79.

[63]See also Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, per Spigelman CJ at [15].

[64]ALEC’s grounds of review are set out in [31] above.

[65]Outline of submissions, 26 July 2022, par 65.

[66] See, for example, Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [63], per Hayne, Kiefel and Bell JJ, and the cases there cited.

[67] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [80]. Italic emphasis was part of the joint judgment.

[68] Specific reference was made to Minister for Immigration & Citizenship v Li and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [10].

[69] Outline of submissions, 26 July 2022, pars 71, 72.

[70] Reference was here made to par 61 of ALEC’s Outline of submissions, which contained the following broad submission: “Insofar as the Controller relied upon the language in the WAP concerning new scientific knowledge, that reliance was both based upon a misconception of the relevant passage of the WAP and lacked an evident or intelligible justification in the evidence before her.”

[71]Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, [34]–[37], [52]. See also Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, [124]–[126].

[72] Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [68], per Hayne, Kiefel and Bell JJ.

[73]Ibid, at [26], per French CJ.

[74]Ibid, at [80].

[75]Ibid, at [83].

[76]Ibid, at [85]. The plurality observed that judicial review of administrative action is in part analogous to appellate review of judicial discretion, and applied the principles stated in House v The King (1936) 55 CLR 499 (at 505) to the review of the exercise of the statutory discretion. This led to the conclusion that unreasonableness may be inferred from the facts and from the matters falling for consideration in the exercise of the statutory power – Li at [76].

[77]Li, at [67].

[78]Ibid, at [76].

[79]Ibid, at [124].

[80] Ibid at [113].

[81] That is, that ‘a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power’.

[82] Li, at [108].

[83] Citing Norbis v Norbis (1986) 161 CLR 513 at 541.

[84] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

[85] Ibid, at [11]-[12], citations omitted.

[86] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11].

[87] See, for example, Li, at [66].

[88] Ogawa v Finance Minister [2021] FCAFC 17 at [17] per Logan, Katzmann and Jackson JJ.

[89] Tickner v Chapman (1995) 57 FCR 451.

[90] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352.

[91] Chapman v Tickner (1995) 55 FCR 316 at 369-370 (O’Loughlin J).

[92]Ibid, at 369B, 370A, 370F.

[93]Tickner v Chapman (1995) 57 FCR 451 at 461G.

[94] Ibid, at 462B.

[95] Ibid, at 465A.

[96] Ibid, at 476C.

[97] Ibid, at 476G.

[98]Ibid, at 493G, 495G.

[99] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, at [43], [46].

[100]Ibid, at [2].

[101]Ibid, at [46].

[102]Ibid, at [47], [48].

[103] Ibid, at [60]. The fact that the visa holders had no legal right to be heard was referred to again at [128] as having “accentuated the need for the Minister carefully to engage with the materials before making such serious decisions”.

[104] Ibid, at [126].

[105]Ibid, at [129].

[106] Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management [2015] NTSC 30; 35 NTLR 140.

[107] Ibid, at [151]. See MAC’s written submissions, 26 July 2022, par 29.

[108]Reference was made to Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at [292] (Gummow J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [35].

[109]Reference was made to Plaintiff M1/2021 v Ministerfor Home Affairs (2022) 96 ALJR 497 at [23] – [24] per Kiefel CJ, Keane, Gordon and Steward JJ and at [43], per Gageler J agreeing.

[110] Ibid, at [25].

[111]Ibid, at [24].

[112] Ibid, [24]-[25].

[113]Ibid, at [26], citations omitted.

[114] See also MAC’s Reply submissions, 26 August 2022, par 8.

[115]MAC’s written submissions, par 31(d).

[116]Minister’s reasons, pp 1684-5 of the Jungfer affidavit.

[117] MAC’s written submissions, par 31(d) & (g).

[118]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279, cited with approval in DWN042 v Republic of Nauru [2017] HCA 56 at [25].

[119] Jungfer affidavit, pp 1726, 1729.

[120]Jungfer affidavit, pp 7-11, pars 11-22.

[121] MAC’s written submissions, par 31(g).

[122] The evidence in MAC’s case does not establish that the Minister relied entirely on a ministerial briefing document or departmental summary, one of the exceptions referred to by Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 31.

[123] Carrascalao, at [48].

[124]MAC’s written submissions, par 32.

[125]Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management (2015) 35 NTLR 140.

[126] Ibid, at [133], [138].

[127] Ibid, at [134].

[128]Ibid, at [152].

[129] Ibid, at [153].

[130] Ibid, at [155].

[131]In this respect, I determined in [44] above that, if comments had been provided to the Controller under s 71B(4) of the Act, then it is implied that the Minister is to take such comments into account.

[132] Environment Centre, at [123], [156]. Prior to the commencement of this case, the Minister had not referred the matter to the Review Panel with a request for advice, pursuant to s 30(3)(b) of the Act.

[133] Ibid, at [158].

[134]Ibid, at [111]. His Honour referred to Twist v Randwick Municipal Council (1976) 136 CLR 106 at 115; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31, 37-38 and 65-66; and Re Control Investment Pty Ltd and Australian Broadcasting Tribunal [No 2](1981) 3 ALD 88 at 92.

[135] Jungfer affidavit, pp 1686 – 1693.

[136] Jungfer affidavit, p 1685, par (a).

[137]Jungfer affidavit p 68, par 2.

[138]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30.9, per Gibbs CJ.

[139] Ibid, at 65 per Brennan J.

[140]Migration Act 1958 (Cth), s 501, as in force at the relevant time. See [131] above.

[141]Jungfer Affidavit, pp 181 – 201.

[142] Jungfer Affidavit, pp 67 – 85.

[143] Minister’s reasons, pp 1686-1691 of the Jungfer Affidavit.

[144] Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at 30, per Gibbs CJ. The distinction between the requirement of the statute in Tickner and that in Peko-Wallsend was commented on by Black CJ in Tickner at 462F.

[145]Reply submissions, par 8: “... The Minister could have not undertaken the requisite intellectual process required by law in relation to the matters raised given the important public purposes of the legislative scheme and the volume and technical nature of the materials”.

[146] Written submissions, par 35.

[147] The contention actually reads, somewhat convolutedly: “The power is limited to those conditions that are reasonably capable of being regarded as related to the purpose of which the function of the Minister is being exercised”.

[148]It is unclear to me how this differs from the previous contention about ‘significantly altering’. If a condition has the effect of ‘significantly altering’ the proposal, then it seems to follow that the fulfilment of the condition would also ‘significantly alter’ the proposal.

[149]See the relevant parts of the Application form – Jungfer affidavit pp 98-99. Annexed to the Application was a document containing estimated monthly water use for the selected crops with estimates for projected irrigation water demand (primary use) and secondary (domestic) use, with projected totals – pp 125-128 of the Jungfer affidavit.

[150]The high point in MAC’s submission in relation to the suggested ‘significant difference’ is in par 46 of its written submissions: “Even bore locations and the amount of water to be taken in any each year of the licence term could change”.

[151]Written submissions, pars 40, 45.

[152] Written submissions, par 45.

[153] Water Act 1992, s 93(2).

[154] MAC’s written submissions, par 53.

[155]MAC’s written submissions, par 54.

[156] Based on Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at 40, per Mason J, with reference to s 22B, and s 90(1)(ab), (b) and (k) of the Act. See footnote 126 to par 54 of MAC’s written submissions.

[157] Review Panel report, par 92, Jungfer affidavit, p 85.

[158] Ibid, par 80, Jungfer affidavit, p 83.

[159] Minister's reasons, Jungfer affidavit, p 1690.

[160] Minister's reasons, Jungfer affidavit, pp 1692-4. Three separate extracts from the Minister's reasons are set out. The numbering is for ease of reference and does not appear in the Minister’s reasons.

[161]Jungfer affidavit, pp 1678-1680.

[162] Written submissions, par 63.

[163]SZBEL v Minister for Immigration (2006) 228 CLR 152 at [26], per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 46 at [97].

[164] SZBEL v Minister for Immigration at [26].

[165]Kioa v West (1985) 159 CLR 550, 584-585.

[166] Affidavit of Kate O'Brien, affirmed 10 May 2022, par 31.

[167] Review Panel report, par 8, Jungfer affidavit, p 68.

[168] Affidavit of Kate O'Brien, affirmed 10 May 2022, par 37. The letter is reproduced at pp 261-267 of the Jungfer affidavit.

[169]See Rex on behalf of the Akwerlpe-Waake, Iliyarne, Lyentyawel Ileparranem and Arrawatyen People v Northern Territory of Australia [2010] FCA 911.

[170] Review Panel report, par 2, Jungfer affidavit, p 68. It may be noted that Dr Ryan Vogwill, expert hydrogeologist engaged by the Central Land Council, gave evidence to the Panel on 3 September 2021. See [199] below.

[171] Review Panel report, par 3, Jungfer affidavit, p 68.

[172]Written submissions, par 66.

[173] See discussion in [44] above.

[174] The submissions referred to Water Act 1992, s 71B(4).

[175] Reference was made to the affidavit of Dr Ryan Ian James Vogwill affirmed 10 May 2022, pars 14-25.

[176]Review Panel report, par 49, Jungfer affidavit, p 77.

[177]Affidavit, par 13.

[178]Ibid, par 16.

[179]Ibid, par 23.

[180] Written submissions, par 68.

[181]Ibid.

[182] Central Land Council's Outline of Submissions to the Review Panel, par 3(b), Jungfer affidavit, p 1279.

[183] MAC cites Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30], per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45], per Bell, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [34], per Kiefel CJ, Gageler, Keane and Gleeson JJ.

[184] Mobil Oil Australia Ply Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504.

[185] Water Act 1992, s 31(1).

[186] See Minister’s reasons, Jungfer affidavit, pp 192-4. See also the discussion in [188] above.

[187] Clark v Cook Shire Council [2008] 1 Qd R 327 at [32], per Keane JA. The issue in the case was the extent to which the modifications to a proposed planning scheme after public notification and receipt of submissions resulted in a planning scheme “significantly different” from the proposed planning scheme notified, in which case the legislation required that the process undertaken would have to recommence.

[188]MAC Reply submissions, par 26.

[189] Controller’s decision, par 120, Jungfer affidavit, p 195.

[190] Jungfer affidavit, p 167.

[191]Ibid, pp 166-7.

[192]See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [92], per Hayne and Heydon JJ.

[193]MAC’s further submissions on ground 9, 23 January 2024, pars 2-3.

[194] Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management (2015) 35 NTLR 140 at esp [148].

[195] MAC’s further submissions on ground 9, par 5.

[196] Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286.

[197] Ibid, at [41].

[198] Ibid, at [99].

[199] Ibid, at [143].

[200]See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, per Hayne and Heydon JJ at [99], [101].

[201] Written submissions, par 8.

[202]Ibid, par 9.

[203] Ibid, par 13.

[204] First defendant's supplementary written submissions on Ground 9, par 26.

[205] Written submissions dated 5 September 2022, par 12.

[206] First defendant's supplementary written submissions on ground 9, pars 11, 13.

[207]Baskerville v Martin [1967] SASR 156.

[208]Ibid, at 160-161; citations omitted.

[209] Baker v The Queen [2004] HCA 45; 223 CLR 513.

[210] Ibid, at [13].

[211] His Honour cited, by way of example, United Mexican States v Cabal (2001) 209 CLR 165.

[212]Jungfer affidavit, p 1690.

[213] See [14] above, dot point 8.

[214] Jungfer affidavit, p 1061.

[215] Jungfer affidavit, p 1062 [64].

[216] Jungfer affidavit, p 1082.

[217]Jungfer affidavit, p 1082.

[218]Jungfer affidavit, p 166. .

[219] Jungfer affidavit, p 1504 [158].

[220] Jungfer affidavit, p 1504 [160].

[221] Jungfer affidavit, pp 1684-5. Submissions, par 17.

[222] Jungfer affidavit, pp 68 [4], 86 [1d], [1g].

[223] Jungfer affidavit, pp. 68 [4], 86-8, 1062 [62]-[64], 1082, 1469-70, 1476-7, 1504 [157]-[160].

[224] Jungfer affidavit, p 84 [84].

[225]Jungfer affidavit, p 1690.

[226] Jungfer affidavit, p 1692.

[227] Jungfer affidavit, p 84 [84].

[228] Jungfer affidavit, pp 1684-5.

[229] Jungfer affidavit, pp 165-7.

[230] Jungfer affidavit, p 195 [118]-[121].

[231] Jungfer affidavit, pp 1062 [62], 1082, 1469, 1504.

[232] Jungfer affidavit, p 1682.

[233] Jungfer affidavit, pp 165-7, 195 [118]-[121], 1684-5

[234] Water Act 1992, s 9(2).

[235] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; 262 CLR 510 (Kiefel CJ, Bell, Gageler and Keane JJ.)

[236]Ibid, at [64].

[237] Minister's reasons, Jungfer affidavit, p 1690.

[238] Project Blue Sky v The Australian Broadcasting Authority (1998) 194 CLR 355 at [90], per McHugh, Gummow, Kirby and Hayne JJ.

[239] Ibid, at [93].

[240] Jungfer affidavit, p 1696. It may be noted that the Minister's reasons referred to a commencement date of 9 April 2021.

[241] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; 262 CLR 510 at [62] and [63], per Kiefel CJ, Bell, Gageler and Keane JJ.

Column 1	Column 2	Column 3	Column 4
Stage	Entitlement ML/yr	Period	Bore Field (Block)
1	12 788	For a period of 3 years from the date the Controller approves, in accordance with CP 2, that the Conditions Precedent have been satisfied.	Block 1, 2 and 3
2	22 845	For a period of 2 years from the date the Controller approves proceeding from Stage 1 to Stage 2.	Block 1, 2, 3, 4 and 5
3	31 779	For a period of 2 years from the date the Controller approves proceeding from Stage 2 to Stage 3.	Block 1, 2, 3, 4, 5, 6 and 7
4	40 000	For the remaining duration of the licence from the date the Controller approves proceeding from Stage 3 to Stage 4.	Block 1, 2, 3, 4, 5, 6, 7, 8 and 9