Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Housing as delegate of the Minister for the Environment

[2025] NTCA 6

CITATION:Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Housing as delegate of the Minister for the Environment & Anor [2025] NTCA 6

PARTIES:MPWEREMPWER ABORIGINAL CORPORATION RNTBC

(ICN 7316)

v

MINISTER FOR TERRITORY FAMILIES AND URBAN HOUSING as delegate of the MINISTER FOR THE ENVIRONMENT

and

FORTUNE AGRIBUSINESS FUNDS MANAGEMENT PTY LTD

(ACN 607 474 251)

TITLE OF COURT:  NORTHERN TERRITORY COURT OF APPEAL

JURISDICTION:  CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:AP 3 of 2024 (22407093)

DELIVERED:  12 May 2025

HEARING DATE:  22 and 23 August 2024

JUDGMENT OF:  Kelly, Huntingford and Burns JJ

CATCHWORDS:

APPEALS – Administrative review – Merits review – Review de novo – Misconstruction – Impermissible use of conditions – Failure to consider – Procedural fairness.

ENERGY AND RESOURCES – Water – Water access licences – Use.

STATUTORY INTERPRETATION – Legislative purpose – Earlier and later provisions – Ordinary meaning - Water Act 1992 (NT), s22B, s 30(3)(a)(ii) and s90(1).

Administrative Appeals Tribunal Act 1975 (Cth)

Interpretation Act 1978 (NT), s 12(2)(c)

Parks and Water Legislation Amendment Act 2024 (NT), s 4

Water Act 1992 (NT), s 4, s 22, s 22B, s 22B(1), s 22B(4), s 22B(5)(a), s 30, s 30(1), s 30(3), s 30(3)(a), s 30(3)(a)(i), s 30(3)(a)(ii), s 30(3)(b), s 30(4), s 31, s 60, s 60(4), s 60(4)(a), s 60(4)(b), s 71B(1), s 71B(4), s 71E(4)(a), s 90, s 90(1), s 90(1)(ab), s 90(1)(k), Part 6

Statute Law Amendment (Territory Economic Reconstruction) Bill 2021

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 187 LGERA 161; Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301; Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning (1999) 86 FCR 266; Coulton v Holcombe (1986) 162 CLR 1; DVO16 v Minister for Immigration and Border Protection and Anor [2021] HCA 12, 273 CLR 177; Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management (2015) 35 NTLR 140; Esber v The Commonwealth (1992) 174 CLR 430; Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; ICM Agriculture Pty Ltd v Commonwealth of Australia (2009) 240 CLR 140; JB v Northern Territory [2019] NTCA 1; Kavvadias v Commonwealth Ombudsman (1980) 1 FCR 80; King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184; Kioa v West (1985) 159 CLR 550; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; Michelmore v Minister for Environment and Conservation [2004] SASC 415; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 46; Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Planning as Delegate of the Minister for Environment & Anor; Arid Lands Environment Centre Inc v Minister for Environment & Anor [2024] NTSC 4; Multicon Engineering Pty Ltd v Federal Airports Corp (1997) NSWLR 631; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Queensland v Humane Society International (Australia) Inc (2019) 272 FCR 310; R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; SZBEL v Minister for Immigrationand Multicultural and Indigenous Affairs (2006) 228 CLR 152; TAB Ltd v Racing Victoria Ltd [2009] VSC 338; Television Corporation Ltd v Commonwealth; Amalgamated Television Services Pty Ltd v Postmaster-General (Cth) (1963) 109 CLR 59; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Water Board v Moustakas (1988) 180 CLR 491, referred to

REPRESENTATION:

Counsel:

Appellant:C Young KC with L Hilly

First Respondent:  C Jacobi KC with T Cramp

Second Respondent:                   SA McLeod KC

Solicitors:

Appellant:Central Land Council

First Respondent:  Solicitor of the Northern Territory

First Respondent:  Ward Keller

Judgment category classification:    B

Number of pages:  112

IN THE COURT OF APPEAL
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 [2025] NTCA 6

No. AP 3 of 2024 (22407093)

BETWEEN:

MPWEREMPWER ABORIGINAL CORPORATION RNTBC

(ICN 7316)

Appellant

AND:

MINISTER FOR TERRITORY FAMILIES AND URBAN HOUSING as delegate of the MINISTER FOR ENVIRONMENT

First Respondent

FORTUNE AGRIBUSINESS FUNDS MANAGEMENT PTY LTD

(ACN 607 474 251)

Second Respondent

CORAM:    KELLY, HUNTINGFORD and BURNS JJ

REASONS FOR JUDGMENT

(Delivered 12 May 2025)

THE COURT:

1. Much of the Northern Territory of Australia is arid. The further one ventures from the coast the more likely it is that you will encounter desert or semi-desert environments with little or no permanent surface water features like rivers or lakes. In such an environment access to water has always been vital to life and hence to the ability of communities to survive and thrive. Water and sites traditionally associated with access to, or use of water also have significance for the traditional occupants of arid lands. The importance of water rights in Australia was recognised in ICM Agriculture Pty Ltd v Commonwealth of Australia[1] where a plurality of the High Court (Hayne, Kiefel and Bell JJ) said, at [90]:

   In Australia, water and rights to use water are of critical importance, not just to those who are immediately interested in particular water rights, but to society as a whole.

2. The present case is about access to and use of water in an arid environment. Singleton Station is a 2,949 square kilometre property situated in the Western Davenport region of the Northern Territory, about 380 km north of Alice Springs and 120 km south of Tennant Creek. The nearest settlement is Ali Curung, about 30 km to the east. The second respondent, Fortune Agribusiness Funds Management Pty Ltd (Fortune) is the lessee of the property under a Perpetual Pastoral Lease.

3. Fortune proposes developing about 3,500 hectares of the property for the purpose of intensive irrigated horticulture, growing crops such as mandarins, table grapes, dried grapes, onions, avocados, muskmelons and jujube. For this project to succeed, Fortune needs access to water. Potentially a lot of water. The only water available is groundwater held in the underground aquifer which can be accessed by a bore or bores on the property.

4. Access to groundwater in the Northern Territory is regulated by the provisions of the Water Act 1992 (NT) (the Act). 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 for the purpose of this project. On 8 April 2021, the Controller made a decision to grant Fortune Licence WDPCC10000 (the Original Licence) allowing Fortune to potentially take up to 40 gigalitres (40,000 megalitres) of groundwater each year from aquifers in the Central Plains Management Zone in the Western Davenport Water Control District. This water was to be taken from bores on Singleton Station.

5. The right of Fortune to take water under the Original Licence was conditional upon Fortune satisfying eight “Conditions Precedent” set out in the Original Licence. The Original Licence also provided for the project to be developed in four Stages. The eight Conditions Precedent were required to be satisfied before Stage 1 could proceed, at which time Fortune would be entitled to take 12,780 megalitres of water per year. Stage 1 was to continue for a period of 2 years from the date that the Controller was satisfied that the Conditions Precedent had been satisfied. Thereafter the project could only progress to Stages 2, 3, and 4 with the approval of the Controller. Fortune was entitled to take increasing quantities of water in each of the subsequent Stages, culminating in an entitlement to take 40,000 megalitres each year in Stage 4.

6. To put the amount of water which Fortune could potentially take annually under the Original Licence into perspective, one gigalitre of water is equivalent to 400 Olympic size swimming pools. The period of the Original Licence was 30 years from the date of grant.

7. In May 2021, the present appellant, Mpwerempwer Aboriginal Corporation RNTBC (MAC), at that time represented by the Central Land Council (CLC), together with the Arid Lands Environment Centre Inc (ALEC) and other parties, sought a review by the Minister for Environment (the Minister responsible for administering the Act) of the decision of the Controller to grant the Original Licence. Both MAC and ALEC submitted that the Minister should set aside the Controller’s decision and substitute a decision to refuse the licence application.

8. MAC is the prescribed body corporate for the native title holders of the Singleton Station pastoral lease. The native title holders possess rights and interests relating to the land which forms Singleton Station, including the right of access for the purpose of maintaining and protecting places of importance to the native title owners, the right to hunt and gather, and the right to take and use the natural resources of the land and waters.

9. ALEC is an environmental organisation formed to support the protection of arid lands in Central Australia.

10. In July 2021, the Minister for Environment referred the application for review to the Water Resources Review Panel (the Review Panel) pursuant to s 30(3)(b) of the Act. The Review Panel was required to consider the application for review “and advise the Minister accordingly”. The Minister could then either uphold the decision under review or substitute the decision that, in the Minister’s opinion, the Controller should have made in the first instance.[2] The Review Panel received and considered submissions from multiple entities, including the Central Land Council (effectively for present purposes MAC) and the Environment Centre NT Inc.

11. On 15 October 2021, the Review Panel provided its report to the Minister for Environment. An issue raised by the Review Panel was the dearth of material in the Controller’s decision or the Original Licence itself, when specifically addressing one of the “key objectives” of the applicable Water Allocation Plan (WAP); protection of Aboriginal cultural values associated with water. We will digress to note that s 22 of the Act permits the relevant Minister to declare a part of the Territory to be a water control district and allocate a name to that district. The Minister may then declare a water allocation plan in respect of a water control district.[3] Singleton Station is within the Western Davenport Water Control District. At all relevant times there was in existence a Western Davenport Water Allocation Plan (WDWAP), one of the objectives of which was to:

    Protect Aboriginal cultural values associated with water and provide access to water resources to support local Aboriginal economic development.[4]

12. On 11 November 2021, the Minister for Environment delegated her powers under s 30 of the Act relating to the applications for review of the Controller’s decision to the Minister for Territory Families and Urban Housing, the first respondent to the present appeal. To avoid confusion, we will in this judgment refer to the Minister for Territory Families and Urban Housing simply as “the Minister”, and where it is necessary to refer to the Minister for Environment, we will use the full description of that office.

13. On 15 November 2021, the Minister signed a revised licence, number WDCP10358 (the Licence). The Minister granted the Licence in the same terms as the Original Licence but amended by the inclusion of two further Conditions Precedent (CP9 and CP10) and by the extension of the period for Stage 1 of the project from 2 years to 3 years.

14. Both MAC and ALEC were dissatisfied with this outcome. Each separately commenced proceedings in the Supreme Court seeking judicial review of the Minister’s decision to grant the Licence. Those proceedings proceeded to hearing before the primary Judge. On 31 January 2024, the primary Judge made orders dismissing each of the proceedings.[5]

15. MAC has appealed from the decision of the primary Judge. ALEC has not sought to appeal.

    The Water Act 1992 (NT)

16. After the events relevant to the present appeal, the provisions of the Act were substantially amended by the Parks and Water Legislation Amendment Act 2024 (NT). The provisions of the Act quoted or referred to in this judgment are those in force at the relevant time. The Long Title of the Act is:

    An Act to provide for the Investigation, allocation, use, control, protection, management and administration of water resources, and for related purposes

17. The Act does not contain a provision setting out the objects of the Act with any greater specificity than is found in the Long Title.

18. Part 6 of the Act is concerned with “groundwater”, which is defined in s 4 as meaning:

    water occurring or obtained from below the surface of the ground (other than water contained in works, not being a bore, for the distribution, reticulation, transportation, storage or treatment of water or waste) and includes water occurring in or obtained from a bore or aquifer.

19. Subject to the provisions of the Act, property in and rights to the use, flow and control of groundwater in the Northern Territory vests in the Territory.[6] The Controller has power under s 60 of the Act to grant a licence to take water from a bore. As will be addressed below, s 60 was amended with effect from 29 September 2021, which was after the Controller granted the Original Licence but before the date on which the Minister decided to grant the Licence. That section provided as at the date of the grant of the Licence:

    Grant of licence to take groundwater

    (1)     Subject to this Act, the Controller may, on the Controller’s own initiative or on application in the prescribed manner and form, grant to a person a licence in the prescribed form to take water from a bore.

    (2)     A licence may be granted under subsection (1) subject to such terms and conditions, if any, as are specified in the licence document.

    (3)     Subject to subsection (4), a licence shall be granted for such period, not exceeding 10 years, as is specified in the licence document.

    (4)     A licence may be granted under subsection (1) for a period exceeding 10 years if:

    (a)the licence is for a purpose, or meets criteria, that the Minister, by Gazette notice, specifies as justifying a longer period; or

    (b)the Controller is satisfied that special circumstances justify the longer period.

20. Before the amendment to the provision was made on 29 September 2021, s 60(4) was in the following terms:

    (4)   The Controller may, where in the opinion of the Minister there are special circumstances that justify so granting the licence, grant a licence for such period exceeding 10 years as is specified in the licence document.

21. On the face of the provision, the power vested in the Controller by s 60 is broad. The section makes it clear, however, that the power is subject to other provisions of the Act. Part 10 Division 2 of the Act is titled “Powers concerning licences and rights of use”. Within Division 2, s 90 provides:

    Factors to be considered

    (1) In deciding whether to grant, amend or modify a permit, licence or consent under section 41, 57, 63, 65, 67, 74 or 93(1), or 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 permit, licence or consent 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;

    (i)the provisions under the Planning Act 1999 relating to the development or use of land in the area in question;

    (j)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.

    (2)     In this section:

    applicant includes the person to whom a permit, licence or consent is or is to be granted when the Controller acts on the Controller’s own initiative without an application having been made.

22. Section 60 is not one of the provisions of the Act specifically referred to in s 90(1). As such, s 90 can only apply to a decision to grant a licence to take water from a bore under s 60 of the Act if such a decision is a “water extraction licence decision” for the purposes of s 90(1) of the Act. The term “water extraction licence” is defined in s 4 of the Act as including a licence under s 60 to take water from a bore. There can be no doubt, therefore, that the terms of s 90 of the Act apply to a decision of the Controller under s 60 to grant a licence to take water from a bore.

23. One of the factors which the Controller must take into account in deciding whether to grant a licence to take water from a bore is “any water allocation plan applying to the area in question”.[7] Section 22B of the Act provides for the making of water allocation plans, and is in the following terms:

    Water allocation plans

    (1)     The Minister may, by notice in the Gazette, declare one or more water allocation plans in respect of all or part of a water control district.

    (2)     The Minister must specify the period (not longer than 10 years) that a water allocation plan is to remain in force.

    (3)     The Minister must ensure that a review of a water allocation plan is conducted at intervals not longer than 5 years.

    (4)     Water resource management in a water control district is to be in accordance with any water allocation plan declared in respect of the district.

    (5)     The water allocation plans for a water control district are to ensure that:

    (a)water is allocated within the estimated sustainable yield to beneficial uses;

    (b)the total water use for all beneficial uses (including those provided through rural stock and domestic use and licences granted under sections 45 and 60) is less than the sum of the allocations to each beneficial use;

    (c)the right to take water under a licence granted under section 45 or 60 is able to be traded (in part or in full); and

    (d)as far as possible – the full cost for water resources management is to be recovered through administrative charges to licensees and operational contributions from licensees.

    (6)     An allocation under subsection (5)(a) is to include an allocation to the environment.

    (7)     An allocation under subsection (5)(a) is to include an Aboriginal water reserve if any of the land in the water control district to which the water allocation plan relates is eligible land.

1. The term “water resource management” found in s 22B(4) is not defined in the Act.

   The present appeal

2. The Grounds of Appeal advanced by MAC are:

   Misconstruction of s 30(3)(a)(ii) of the Water Act

   1. The primary judge erred in finding that s 30(3)(a)(ii) of the Act did not require the Minister to comply with s 60(4) of the Act as in force on 15 November 2021 before granting the Licence for a period exceeding 10 years.

   2. The primary judge should have found that the Minister was required to comply with s 60(4) of the Act as in force on 15 November 2021 when exercising her review function under the Act.

   Misconstruction of ss 22B and 90(1)(ab) of the Water Act

   3.    The primary judge erred in finding:

   i. That “planning and management of the water resource in a water control district was and remains the meaning of ‘water resource management’” for the purpose of s 22B(4) of the Act; and

   ii.that s 22B(4) “does not predetermine a water extraction licence decision so as to prohibit any departure from the provision of a declared water allocation plan”; and

   iii. 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.”

   4.    The primary judge should have found that:

   i. “water resource management” for the purpose of s 22B(4) includes the grant of a licence to take groundwater pursuant to s 60 of the Act (water extraction licence decision); and

   ii.that by operation of s 90(1)(ab) and s 22B(4) of the Act a water extraction licence decision must accord with and not be inconsistent with, a water allocation plan declared pursuant to s 22B(1) of the Act applying to the area in question.

   Impermissible use of conditions

   5. The primary judge erred in failing to find that by the imposition of conditions precedent 5, 7, 8, 9 and 10 and the staging conditions the Minister impermissibly deferred consideration of relevant matters in s 90(1)(a), (ab), (b), (c), (e), (g), (h) and (k) of the Act to the Controller.

   6. Further or in the alternative, the primary judge erred in failing to find that by the imposition of condition precedent 10 the Minister impermissibly deferred consideration of relevant matters in s 90(1)(ab), (c), (h) and (k) of the Act to the second respondent (Fortune).

   7.    The primary judge erred in failing to find that by the imposition of CP 5, 7, 8, 9 and 10 the Minister failed to decide the application before her as the conditions precedent left open the possibility that the proposal as carry out would be significantly different to the proposal the subject of the application.

   Failure to consider Aboriginal cultural values.

   8. The primary judge erred in finding that Aboriginal cultural values were not a mandatory relevant consideration by reason of s 90(1)(k) of the Act read in conjunction with the Western Davenport Water Allocation Plan.

   9.    The primary judge erred in finding that the Minister did consider Aboriginal cultural values “from the fact that the Minister added condition CP 10” in circumstances where the Minister identified cultural values as a relevant consideration, but granted a licence in circumstances where no consideration was given by her to cultural values as CP 10 required an Aboriginal cultural values impact assessment to be undertaken in circumstances where no such assessment had been undertaken.

   Procedural fairness

   10. The primary judge failed to consider whether the Minister afforded procedural fairness to MAC in respect of the requirements of a cultural impacts assessment.

   11.  In the alternative, the primary judge failed to give reasons to support the finding that the Minister afforded procedural fairness to MAC in respect of the requirements of a cultural impacts assessment.

   12. Further or in the alternative, the primary judge erred in finding that the obligation to afford procedural fairness to MAC was satisfied “after it had made written representations to the Review Panel and engaged in the Review Panel’s processes”.

3. In its written submissions, MAC identified five errors of law which it said underpinned the 12 pleaded grounds of appeal. The alleged errors were:

   a) misconstruction of s 30(3)(a)(ii) of the Act (Issue 1);

   b) misconstruction of ss 22B and 90(1)(ab) of the Act (Issue 2);

   c)    the impermissible use of conditions (Issue 3);

   d)   a failure to consider Aboriginal cultural values (Issue 4); and

   e)    errors in considering arguments in respect of a denial of procedural fairness (Issue 5).

4. Counsel for MAC structured their submissions by reference to these five Issues. We will adopt a similar approach.

   Notice of Contention

5. While the first respondent (the Minister) provided written submissions to the effect that she would restrict her involvement in the present appeal to submissions directed to the proper construction of the Act, consistent with the principles stated in R v Australian Broadcasting Tribunal; ex parte Hardiman,[8] she also filed a Notice of Contention in the following terms (omitting formal parts):

   MAC Ground 9 (Appeal Ground 1): Construction of section 30(3)(a)(ii) of the Water Act 1992 (NT)

   (2) Should the primary judge be in error in concluding that section 60 of the Act as it stood at the time of the Controller’s decision applied on the review as a result of the operation of section 30 (3)(a)(ii), the First Respondent contends that:

   (a) the First Respondent was satisfied that there were “special circumstances” as the existence of special circumstances was a contested issue on the review which the Review Panel resolved and the First Respondent accepted, and in any event was satisfied of matters which together amount to “special circumstances” within the meaning of s 60(4)(b), justifying the grant of the licence for a longer period than 10 years and in accordance with s 60(4)(b) of the Water Act 1992 (NT).

   (3) Should the primary judge be correct in finding that the First Respondent was not satisfied that special circumstances justified the grant of the licence for a period of 30 years that being “the longer period” referred to in s 60(4)(b)…the First Respondent contends that:

   (a) the effect of non-compliance with s 60(4)(b) is only that a licence for a period longer than 10 years would not be valid, not that there would be no valid licence at all.

   ALEC Ground 1 (Appeal Ground 2): Construction of ss 22B and 90(1)(ab) of the Water Act 1992.

   (4)   The First Respondent contends that the finding 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…is supported on the following additional basis:

   (a) A “water allocation plan” within the meaning of s 22B of the Water Act 1992 (NT) is only that part of the content of plan that addresses the matters specified in s 22B(5), and while a plan when published may include other information, such other information, if included, is not the “water allocation plan” within the meaning of the Act.

   Issue 1: Misconstruction of s 30(3)(a)(ii) of the Act

6. The relevant background to this issue is that s 30(3) of the Act prescribes, subject to the provisions of the Act generally, the powers available to the Minister on the hearing of an application to review a decision of the Controller. One of those powers, and that which the Minister purported to exercise in the present matter, is the power to substitute for the Controller’s decision “the decision that, in the opinion of the Minister, the Controller should have made in the first instance”.[9]

7. An issue arose in the application of this provision in the present case. On 29 September 2021, between the date of the making of the Controller’s decision to grant the original Licence and that made by the Minister to grant the Licence after the review of the Controller’s decision, amendments to the provisions of s 60 of the Act took effect. The pre- and post-amendment forms of s 60(4) are set out at [19]-[20] above.

8. Section 60 of the Act is important because it prescribed, in general terms, that the Controller could not issue a licence to take groundwater for a period exceeding 10 years except in accordance with s 60(4). When the Controller made the decision to grant the original Licence, she was not required to determine whether special circumstances existed justifying a licence of 30 years, because, under s 60(4) as it stood at the time, that was a matter for determination by the relevant Minister. The Controller made her decision on 8 April 2021. Before that date, on 15 February 2021, the Minister for Environment had provided her opinion, by endorsement on a Ministerial Briefing document, that there were special circumstances justifying the grant of a licence for 30 years. Those circumstances were: the scale of the proposed project, the level of investment in the project, the time required to develop the project and the potential economic benefits for the Northern Territory.

9. The evidence before the primary judge was to the effect that the Minister to whom the Minister for Environment had delegated the consideration of the application for review had, as part of the Minister’s briefing, reviewed and considered the Minister for Environment’s decision, the Controller’s decision and the submissions made by the relevant parties to the Review Panel.

10. Before the primary judge, MAC contended that in applying s 30(3)(a)(ii) of the Act the Minister was obliged to make the decision referred to in that subsection based on the provisions of s 60(4) as they were at the time of the Minister’s decision, and not as they were at the time that the Controller’s decision was made. The effect of that requirement, MAC submitted, was that the Minister erred in law in granting the Licence for a 30-year period. This was because, MAC submitted, there had been no relevant Gazette notice by the Minister pursuant to s 60(4)(a) and, in addition, s 60(4)(b) was not satisfied because the Controller did not determine whether special circumstances justified a licence for a period exceeding 10 years, in this instance 30 years.

11. The primary judge did not accept that the Minister had to apply the law as it stood at the date of the Minister’s decision. The primary judge said, at [234]-[236]:

    [234] In my opinion, the sub-paragraph should be interpreted such that the decision which the Controller “should have made in the first instance” means a decision under the law as it stood at the time of the Controller’s decision. The fact that the Minister is required to take into account factual matters or factual considerations arising subsequently to the Controller’s decision does not mean that the Minister is required to take into account legislative changes enacted subsequently. In my analysis, the relevant question is: “How could the Minister be of the opinion that her intended substitute decision was the one which the Controller ‘should have made in the first instance’ if the intended substitute decision is to be made under a statutory framework which did not exist at the time of the Controller’s decision?” Logically, the Controller could not have made a decision in the first instance to comply with a legislative provision which had not come into effect.

    [235] The construction I prefer accords with the ordinary grammatical meaning of the text of s 30(3)(a)(ii). It is consistent with context and legislative purpose. The result is not unreasonable or absurd. As applied in the present case, it operates to preserve the ‘value’ of the processes engaged in by multiple parties in the 12 months preceding the amendment to s 60(4) of the Act. In my opinion, there is no incongruity in the Minister being able to take into account subsequent facts, but not being bound by subsequent changes in the law. Facts which emerge subsequently may well highlight deficiencies in the Controller’s decision, and lead the Minister to make a decision which, in the Minister’s opinion, the Controller should have made in the first instance; whereas the fact that the law may have changed says nothing about whether the decision was the one which the Controller should have made in the first instance, before the legislative change.

    [236] In my judgment, the unamended s 60 of the Act applied on the review, as a result of the text of s 30(3)(a)(ii). On that basis, the Minister did not err in law by failing to comply with s 60(4) of the Water Act 1992, as in force on 15 November 2021. MAC’s contentions referred to in [221] cannot be maintained, and ground 9 should be dismissed.[10]

    MAC’s submissions on appeal

12. MAC submitted that there was an inconsistency between the primary judge’s acceptance that, in making the decision under s 30(3)(a)(ii) of the Act, the Minister was obliged to consider the factual matters or considerations that arose after the making of the Controller’s decision and the determination by the primary judge that the Minister was obliged to apply the law as it stood at the time of the Controller’s decision. MAC advanced the following submissions supporting its submission that the primary judge was in error.

13. First, MAC submitted that, in exercising her power under s 30(3)(a) of the Act, the Minister was undertaking a “merits” review of the Controller’s decision. The Minister was, in effect, required to conduct a fresh, or de novo, hearing of Fortune’s application for a licence. The language of s 30 did not restrict the Minister to considering only those matters which had been before the Controller. MAC submitted that it would be anomalous to construe the provision as restricting the Minister to consideration of the law as it stood at the time of the Controller’s decision.

14. Secondly, MAC submitted that the orthodox position for a review body charged with merits review is to conduct the review by reference to the facts and circumstances, including the law, as they stand at the date of the review.[11]

15. MAC submitted that, contrary to the determination of the primary judge, the use of the words “the Controller should have made in the first instance” in s 30(3)(a)(ii) of the Act did not evince a legislative intention to displace that orthodox position. Rather, it was submitted, the text of the Act supported the orthodox position for the following reasons:

    a)First, the powers vested in the Review Panel by s 31 of the Act confirm that the Minister is undertaking contemporaneous review when exercising the Minister’s power under sub paragraphs 30(3)(a)(i) or (ii) of the Act. The powers vested in the Review Panel include the power to require a person to appear before the Review Panel and/or to produce any relevant documents, to require a person to give evidence on oath, to require a person appearing before the Review Panel to answer relevant questions and to enable the Review Panel or a person authorised by it, to enter and inspect land for the purposes of a proceeding before the Review Panel. Upon completion of its function, the Review Panel is obliged to advise the Minister. The Minister, therefore, in making a determination whether to uphold the decision or to substitute a fresh decision, is not confined to considering only the material that was before the Controller. MAC submitted that there is no reason to distinguish between factual and legal considerations when the Minister makes the determination.

    b)Secondly, MAC submitted that the powers vested in the Minister by s 30(3) are expressed to be “subject to this Act”. MAC submitted that it was open to the legislature to express in clear terms any temporal modification to the orthodox position that the applicable law is that at the time of the review and the legislature had not done so. Further, the absence of a transitional provision to preserve the operation of s 60(4) with regard to applications pending at the time of the amendments to s 60, MAC submitted, tells against the application of the repealed provision in the review process.

    Thirdly (and somewhat unnecessarily) MAC submitted that there had been no suggestion by any party that s 30(1) gave rise to an accrued right so as to invoke the operation of s 12(2)(c) of the Interpretation Act 1978 (NT). That section provides that the repeal of an Act, or part of an Act, does not affect a right, privilege, obligation or liability acquired, accrued or incurred under an Act or the part of the Act so repealed.

    The Minister’s submission on appeal

16. Before the primary judge, the Minister accepted that the applicable law governing the Minister’s review of the Controller’s decision to grant the original licence was the law at the time of the Minister’s review. The Minister argued before the primary judge that the requirements of s 60 (4) of the Act, as amended, had been complied with. The primary judge held that the requirements of s 60(4) as amended had not been complied with, but this did not matter as the law applicable on the Minister’s review was s 60(4) as it stood at the time of the Controller’s decision. The primary judge held that the applicable law had been complied with by the Minister on the review.

17. On the present appeal, the Minister’s principal position was to support the decision of the primary judge, with an alternative position that, if the applicable law was as found in the amended s 60(4), the primary judge was in error in finding that the requirements of the amended section had not been met (Notice of Contention, Ground (2)).

18. The Minister accepted before this Court that she was obliged to perform a de novo merits review of the Controller’s decision. The Minister supported the primary judge’s reasoning that the use of the words “which the Controller should have made in the first instance” by the legislature in s 30 (3)(a)(ii) of the Act evinced an intention that the Minister, in conducting a review under s 30, was to apply the provisions of s 60(4) as they were at the time of the Controller’s decision.

19. In the alternative, and addressing Ground (2) of the Notice of Contention, the Minister submitted that the primary judge erred in finding that there was no evidence that the Minister was satisfied that special circumstances existed which justified the grant of a licence for a period of 30 years. The Minister submitted that it should be inferred from the surrounding circumstances that she had found special circumstances justifying the grant of a 30-year lease. In that regard, the Minister observed that after receiving the report of the Review Panel, she determined to grant the Licence “on the same basis as the Controller” but subject to additional conditions. In the Minister’s reasons accompanying her decision, and under the heading “Licence Period”, the Minister said:

    Concerns were raised by Reviewing Persons regarding the 30 year tenure of the licence.

    The Review Panel is of the view that a licence term of greater than 10 years, with suitable conditions precedent and staged entitlements, is appropriate for a large-scale development such as that proposed.[12]

20. Before the primary judge, the Minister submitted that in taking that course she should be understood as having accepted the Minister for Environment’s opinion regarding the existence of special circumstances when she, the Minister, exercised her powers under s 30(3) of the Act, and as such she had complied with the requirements of s 60(4)(b) of the Act as amended.

21. The primary judge did not accept that submission, saying, at [258] – [263]:

    [258] The question for my determination is whether, in the absence of a clear statement to this effect, an inference can properly be drawn that the Minister was satisfied that special circumstances justified the licence period of 30 years. Counsel for MAC caution against reliance on “implications, obtuse references or imprecisions”. I consider that caution both appropriate and relevant. My concern is that acceptance of the submissions of counsel for the Minister would require a deal of conjecture on my part.

    [259] As I interpret s 60(4) of the Act, in force at the date of the Minister’s decision, the Minister was required to be satisfied that special circumstances justified the grant of a licence for a period of 30 years, that period being “the longer period” referred to in s 60(4)(b). The use of the definite article points to the need for satisfaction about the actual proposed period of a particular licence, not simply more general satisfaction that it be for a period exceeding 10 years.

    [260] I bear in mind that the property in and the rights to the “use, flow and control” of all water in the Territory, including groundwater, is vested in the Territory. The Minister exercises those rights on behalf of the Territory. As counsel for MAC point out, s 60(4)(b) is an important constraint on the exercise by the executive of the power to grant a licence to exploit an important resource. They refer to the decision of the majority in Forrest & Forrest Pty Ltd v Wilson, for the proposition that where a statutory regime confers power on the executive government to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. MAC contends that satisfaction by the Controller that “special circumstances” existed was a jurisdictional pre-condition to the exercise of the power. Having found (in [244]) that the reference to the Controller in s 60(4)(b) is to be read and understood as a reference to the Minister on review, I will treat MAC’s contention to be that satisfaction by the Minister on review that “special circumstances” existed was a jurisdictional pre-condition to the exercise of the power exercised by her to grant a licence for the longer period of 30 years.

    [261] MAC submits that the only assessment made of “special circumstances” in this case was that by Minister Lawler when she provided an opinion as to special circumstances on 15 February 2021. The only reference to “special circumstances” in the decision of the Minister on review was her observation that Minister Lawler had provided her opinion on special circumstances and that the reviewing parties had raised a concern about Minister Lawler’s ability to make a decision on account of apprehended bias. The Minister did not state whether or not she agreed with the opinion of Minister Lawler.

    [262] MAC has established that there is no evidence that the Minister was satisfied that special circumstances justified the grant of a licence for a period of 30 years, that being “the longer period” referred to in s 60(4)(b). As mentioned in [245] above, the Minister did not expressly state her satisfaction that special circumstances justified the licence period of 30 years. Further, although the Minister made reference to the decision of Minister Lawler (the first Minister), that was in a different context. The Minister did not state that she adopted the opinion of Minister Lawler. I do not agree that the Minister “should be understood to have accepted the first Minister’s opinion”, simply because it was attached to the ministerial briefing document. Further, the suggestion that the Minister relied on the Controller’s opinion cannot be sustained because, for reasons explained in [242], the Controller did not relevantly state her own satisfaction and her decision was more likely than not based on Minister Lawler’s opinion, and not the Controller’s own opinion. Finally, the suggestion that the Minister was entitled to rely on the opinion of the Review Panel similarly cannot be sustained because of the very limited comments made by the Review Panel, referred to by me at [255] above.

    [263] My conclusion is that, if it were a jurisdictional pre-condition that the Minister needed to be satisfied that special circumstances justified the grant of a licence for a period of 30 years, then that pre-condition was not satisfied.[13]

    (Citations omitted)

1. Before this Court, the Minister submitted that there could be no doubt that the duration of the licence was a live issue before the Review Panel and herself. The CLC, in its written submissions to the Review Panel, contended that the Controller should not have granted the Original Licence for a period greater than 10 years. The Environment Centre NT Inc submitted that a licence in excess of 10 years was not warranted, pointing to the high degree of scientific uncertainty underpinning the WDWAP. Fortune submitted that a licence term of 30 years was warranted due to the time required to develop the project, the scale of the project, the level of investment in the project and the potential economic benefits of the project. In the present appeal, the Minister submitted that this was all before the Review Panel and the Minister had accepted the findings of the Review Panel leading to the inference that the Minister had agreed that there were special circumstances justifying a licence in excess of 10 years and, in particular, of 30 years.

2. The primary judge stated that the decision of the Minister made after receiving the report of the Review Panel did not contain a clear statement to the effect that the Minister was satisfied that special conditions justified the licence period of 30 years. The primary judge was unwilling to infer that the Minister had made such a determination: see [44] above. In the present appeal, the Minister submitted that the primary judge had erred in that approach.

   Fortune’s submissions on appeal

3. Fortune accepted that in undertaking a review of the Controller’s decision as permitted by s 30 of the Act the Minister was undertaking a “merits” or “contemporaneous” review of the Controller’s decision. Fortune adopted the reasons of the primary judge for ruling that the Minister was obliged by the terms of s 30(3)(a)(ii) of the Act, in determining to substitute the Minister’s decision for that of the Controller, to apply the terms of s 60(4) as they existed at the date of the Controller’s decision. This ruling was dictated, it was said, by the ordinary grammatical meaning of the text in s 30(3)(a)(ii) and was supported by the legislative purpose of the Act.

4. Fortune submitted that the primary judge’s reasoning process was orthodox and MAC had failed to make out this aspect of the appeal.

   MAC’s submissions in reply

5. MAC submitted that the text of s 30(3)(a)(ii) of the Act does not support the construction now urged by the Minister, and that it would have been easy for the legislature to make it clear that in exercising the power conferred by s 30(3)(a)(ii) the Minister was to apply the law, and in particular the terms of s 60(4) of the Act, as they were at the time of the Controller’s decision.

6. The true purpose and effect of s 30(3)(a)(ii), MAC submitted, is to confer upon the Minister, when performing a review, the relevant powers and discretions of the Controller necessary to make that decision. MAC submitted that this was consistent with comments made by Hiley J regarding s 30(3)(a)(ii) in Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management[14] at [100]:

   Unlike provisions which enable an appellate tribunal to vary the original decision, the decision of the Minister under s 30(3)(a)(ii) is his or her decision.

   (emphasis added)

7. The distinction between varying the orders made by an original decision maker and exercising a jurisdiction to make a fresh decision was referred to by Brennan J in Brian Lawler Automotive Pty Ltd and Collector of Customs,[15] which was subsequently cited in Shi at [100], by reference to analogous powers in the now repealed Administrative Appeals Tribunal Act 1975 (Cth):

   A decision by the Tribunal…to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration…requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43 (1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.

8. MAC submitted that a decision made by the Minister under s 30(3)(a)(ii) is a decision of the Minister exercising the requisite original powers and discretions of the Controller. MAC submitted that the words “in the opinion of the Minister, the Controller should have made in the first instance” simply make it clear that the Minister is conferred with the necessary powers and discretions to make a “fresh” decision. In other words, the provisions of s 30(3)(a)(ii) simply make it clear that the function of the Minister in that provision is that he or she exercises the powers and discretions available to the Controller afresh and not as a process of reviewing the correctness of the Controller’s decision.

9. MAC referred this Court to the decision of the Full Court of the Supreme Court of South Australia in Michelmore v Minister for Environment and Conservation.[16] The statute there under consideration conferred power on a Court to substitute for a challenged decision “any decision, direction or restriction that should have been made in the first instance”. The Full Court (Perry J, with whom Doyle CJ and Vanstone J agreed) said, at [61]:

   Insofar as the ERD Court is empowered to reach the decision “that should have been made in the first instance”, the ERD Court stands in the shoes of the Minister.

10. MAC submitted that this statement confirms that the phrase “that should have been made in the first instance” involves the conferral of power and is a reference to the conferral upon the Minister of the powers and discretions of the original decision maker. In the present case, MAC submitted, there is nothing in the conferral upon the Minister of the relevant powers and discretions of the Controller that required those powers and discretions to be fixed at the time the Controller exercised them. The law in this area, MAC submitted, is clear and was expressed by Brennan J in Esber v The Commonwealth:[17]

    Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time.

11. Although MAC embraced the proposition that the Minister “stands in the shoes of” the Controller in making a decision under s 30(3)(a)(ii), it submitted that the reference to “the Controller” in s 60(4)(b) of the Act is not to be taken to be a reference to the Minister on review. MAC referred to the Explanatory Statement to the Statute Law Amendment (Territory Economic Reconstruction) Bill 2021 (the Bill), which introduced the amendments to s 60(4), as evidencing a legislative intention that after the amendment of s 60(4) the Minister’s opinion or discretion was no longer relevant to determining whether a licence should be granted for a period exceeding 10 years. The Explanatory Statement relevantly provides:

    The previous section refers to a ministerial discretion to grant a licence to take groundwater for a period exceeding 10 years, which would otherwise be the maximum period stipulated in subsection 60(3). The clause alters the operation of the old subsection 60(4) by providing for a licence to meet criteria to justify the longer licence period, whereas previously the decision was based upon the Minister’s opinion.

    This creates additional certainty for industry, as this allows for the creation of set criteria and circumstances which can be made available to applicants and provide transparency in the decision-making process.

12. MAC submitted that the Minister’s suggested interpretation required the Minister to take into account the facts and circumstances as they existed at the time of the Minister’s review determination but to apply the law as it applied at the time of the Controller’s decision. There was, MAC submitted, no textual basis for this bifurcation. The Minister’s suggested interpretation would also lead to the impossible construction that the decision the “Controller should have made at first instance” includes consideration of material that was not, and could not have been, before the Controller such as the findings and recommendations of the Review Panel.

13. About the Minister’s Notice of Contention, MAC submitted:

    a)    the Minister never, in fact, reached any satisfaction about “special circumstances” which would justify the grant of a licence for a term of 30 years (Ground 2); and

    b)   nothing in the Act justified severing that term of the Licence which exceeded 10 years, leaving the first 10 years of the Licence as valid (Ground 3).

14. MAC submitted that it could not be inferred that the Minister had reached a state of satisfaction about special circumstances justifying a licence period exceeding 10 years on the basis that she had accepted a finding about special circumstances made by the Review Panel. The primary judge, MAC submitted, did not accept that a finding about special circumstances had been made by the Review Panel.

15. It was argued before the primary judge that the statement of the Review Panel that it was of the view “that a licence term of greater than 10 years, with suitable conditions precedent and staged entitlements [was] appropriate for a large-scale development such as that proposed” constituted a statement by the Review Panel that it was satisfied that there were special circumstances justifying the grant of a licence for a period exceeding 10 years, being 30 years in the present case. It was further argued that the Minister expressly adopted the Review Panel’s conclusion.

16. Regarding this submission, the primary judge said, at [255]:[18]

    The Review Panel did not find that there were any special circumstances which justified the grant of a licence for the longer period of 30 years. It simply expressed the view correctly attributed to it [that a licence term of greater than 10 years, with suitable conditions precedent and staged entitlements [was] appropriate for a large-scale development such as that proposed]. The Minister then did no more than set out the view of the Review Panel that a licence term of greater than 10 years was “appropriate” for a large-scale development such as that proposed. It would therefore be more correct to say that the Minister set out what is now contended to have been the Review Panels finding of a special circumstance. However, I do not agree that the Review Panel made a relevant finding in relation to special circumstances, because it made no mention of being satisfied that special circumstances justified the licence period of 30 years.

    (Italicised as per original)

17. MAC submitted that the Minister’s case on the Notice of Contention was that she should be taken to have reached an implicit state of satisfaction that there were special circumstances justifying the grant of a 30-year licence based on implicit findings made by adopting implicit findings of another body, being the Review Panel. MAC submitted that this was inappropriate, citing the decision in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] where it was said:

    A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.

18. Addressing Ground 3 of the Notice of Contention MAC submitted there is nothing in the words of the Act to suggest that licences granted under the Act are severable where the licence is purported to be granted for a term longer than that permitted by the Act. There is also nothing in the record that suggests that the Minister made, or intended to make, a decision to grant the Licence for a period of 10 years. Indeed, MAC submitted, Fortune itself had not sought a 10 year licence and had made no submissions on the issue of severance. Such a licence had not been the subject of consideration by the Controller, the Review Panel or the Minister herself.

    Consideration

19. The legal question which requires resolution on Issue 1 is: did the provisions of s 30(3)(a)(ii) of the Act require the Minister to determine what decision “the Controller should have made in the first instance” by reference to s 60(4) as it was at the time of the Controller’s decision or at the time of the Minister’s determination?

20. This issue only arises because s 60(4) was amended in the period between the Controller’s decision and the Minister’s review decision. It is highly unlikely that this Issue will arise in other cases. It must nevertheless be confronted in this case. In our respectful opinion, the primary judge was incorrect for the reasons that follow.

21. Where a statute provides a right of review of an administrative decision, the first issue to be addressed will normally be to determine the nature of the review. It is accepted by all parties that the obligation cast on the Minister by s 30 of the Act in undertaking the review of the decision of the Controller was to conduct a hearing de novo. It is clear from the provisions of s 30, which enables the Minister to receive fresh evidence by way of advice from the Review Panel, and the provisions of s 31 of the Act that permits the Review Panel to take evidence for the purpose of formulating its advice to the Minister, that the review undertaken by the Minister is not one based upon the necessity of identifying error in the Controller’s decision. The Minister “stands in the shoes” of the Controller and decides the review based on the Minister’s own opinion of the merits of the application.

22. In conducting a merits review by way of hearing de novo it is the orthodox position, as stated by MAC, that the review is conducted by reference to the facts and circumstances, including the law, as they are at the date of review.[20] But the intention of the legislature as found in the statute will prevail over orthodoxy where there is a conflict. The primary judge found that the intention of the legislature, as expressed in the words of s 30(3)(a)(ii) of the Act, was that the Minister was obliged to apply the law as it stood at the date of the Controller’s decision.

23. In reaching that conclusion, the primary judge was influenced by a desire to give efficacy to the words “the Controller should have made in the first instance” in the section. It is clear, for the reasons noted above, that these words did not restrict the Minister to deciding the review based solely on the factual material before the Controller. If the words were to have any restrictive application to the review undertaken by the Minister, it could only be to restrict the Minister to forming her opinion based on the law as it stood at the time of the Controller’s decision.

24. It is possible to hypothesise sound policy reasons for the legislature adopting such an approach. As the present case demonstrates, preparation of an application for the grant of a licence to take groundwater can be a lengthy and costly exercise, involving the formulation of a business case and the retention of experts to provide opinions on, inter alia, the availability of groundwater and the likely effect that granting the licence will have on the groundwater in the district and thus on the environment generally. It would not be surprising for the legislature to have intended to protect applicants whose application had proceeded as far as approval by the Controller from any subsequent changes in the law which may otherwise require the application process to be recommenced. For the reasons that follow, that would be the result of the application of MAC’s construction of s 30(3)(a)(ii).

25. On an application for review under s 30 of the Act, the Minister has only four possible options. The Minister may:

    a)    uphold the action or decision of the Controller (s 30(3)(a)(i));

    b)   substitute for the Controller’s decision the decision that the Minister is satisfied should have been made by the Controller in the first instance (s 30(3)(a)(ii));

    c)    refer the matter back to the Controller for reconsideration (s 30(3)(a)(iii)); or

    d)   refer the matter to the Review Panel for advice (s 30(3)(b)).

26. Where the Minister refers the matter to the Review Panel for advice, upon receipt of that advice the Minister has only two options. The Minister may (a) uphold the action or decision of the Controller or (b) substitute for the Controller’s decision the decision that the Minister is satisfied should have been made by the Controller in the first instance.[21] The Act does not permit the Minister to refer the matter back to the Controller for reconsideration where the Minister has referred the matter to the Review Panel and has received its advice.

27. It follows that in the present case, if MAC is correct, the Minister on review could not have approved the decision of the Controller because the Controller (they submitted) had not determined for herself that a licence for the period of 30 years was justified as required by the amended s 60(4). Nor could the Minister make her own determination that the licence period of 30 years was justified because by the time the Minister came to make the review decision the amendments to s 60(4) had come into effect vesting in the Controller the power to determine that a licence period of 30 years was justified.

28. The consequence of adopting MAC’s construction of s 30(3)(a)(ii) is that, in the absence of transitional provisions in the Bill, a lacuna exists in the procedures prescribed by the Act affecting applications which were made and processed under the Act as it was prior to the amendments to s 60(4) but in relation to which the Minister had made no decision on review under s 30 until after the amendments took effect. The only possible action that the Minister could take, regardless of the merits of the application, regardless of the cost to the applicant and other interested parties, would be to substitute a decision to refuse the application. The Minister cannot refer the matter back to the Controller to allow the Controller to determine under the amended s 60(4) whether a licence period of 30 years is justified.

29. This would be an absurd outcome. It is difficult to contemplate any sound policy objective for such an approach. This Court should not lightly attribute such absurdity to the legislature. Such a construction should only be accepted if the Court is driven to it by the clear words of the statute precluding a more rational construction. The other possibility, that the legislature had neglected to include transitional provisions in the Bill, is another inference that should not lightly be drawn.

30. The construction of s 30(3)(a)(ii) adopted by the primary judge and now supported by the Minister and Fortune has its own difficulties. There is force in MAC’s submission that the interpretation of s 30(3)(a)(ii) adopted by the primary judge leads to a potential for the Minister, in determining what decision “should have been made at first instance” by the Controller, to act upon material which was not and could not have been before the Controller. The interpretation of s 30(3)(a)(ii) adopted by the primary judge and now supported by the Minister and Fortune, however, is strained in the sense that it removes the review in the section from the orthodox position regarding de novo reviews and where the words under consideration will only operate in rare circumstances where there has been a change in the legislation affecting a matter which is susceptible to review under s 30 of the Act. It is difficult to accept that s 30(3)(a)(ii) was drafted as it is to guard against the remote possibility that the Act may someday be amended in such a way as to affect the outcome of a review under s 30.

31. The identified absurdity to which MAC’s interpretation of s 30(3)(a)(ii) leads, and the difficulties referred to in the previous paragraph, fall away, however, if it is accepted that the Minister, in standing in the shoes of the Controller on a review under s 30, can exercise all the powers of the Controller including the power under s 60(4)(b) to decide whether there are special circumstances justifying a lease of 30 years. Such an approach would make the relevant provisions of the Act coherent and remove the need for transitional provisions. It would also restore the nature of the review pursuant to s 30 to the orthodox position to which I have referred. Such an approach would also be consistent with the decision in Michelmore. There is nothing in the Explanatory Statement which requires a different approach. The terms of the Explanatory Statement merely describe the changes to be made by the Bill.

1. Before the primary judge, the Minister accepted that the law to be applied in deciding to grant the Licence to Fortune after the review hearing was s 60(4) as amended. The Minister submitted that the requirements of the amended s 60(4)(b) had been satisfied when the decision was made to grant the Licence. In the present appeal the Minister has taken a different approach, embracing the primary judge’s approach to interpretation of s 30(3)(a)(ii). There may well be good forensic reasons for this change of approach, but in our opinion the approach taken by the Minister before the primary judge was correct.

2. Before the primary judge, and in the present appeal, MAC has consistently asserted that the reference to “the Controller” in s 60(4)(b) cannot be taken to be a reference to the Minister on review. MAC submitted that it is the Controller, and not the Minister, who is empowered by s 60(4)(b) to make the relevant finding. MAC submitted that this position is not displaced by reference to “the Controller” in s 60(1) which provides the Controller with the power to make a decision “in the first instance”. MAC submitted that this power to make a decision in the first instance is “not the power exercised by the Minister when undertaking a review “. This is because, MAC submitted, the Minister is not empowered by the Act to make the decision “at first instance” but only on review pursuant to s 30(3)(a)(ii). No authority was cited for this submission, and it appears that it is based solely on the terms of the relevant provisions of the Act.

3. The primary judge accepted that reference to the Controller in s 60(4)(b) of the Act is to be read and understood as a reference to the Minister on review. The primary judge only addressed that question, however, in the context of considering MAC’s submissions in the event that his Honour’s primary interpretation of s 30(3)(a)(ii) was wrong. In our opinion, to gain a proper understanding of the legislative intention behind the use of the words “should have been made at first instance” in s 30(3)(a)(ii) it is necessary to understand the nature of the review which the Minister undertakes pursuant to s 30.

4. In Shi, Kiefel J said regarding merits review, in the context of proceedings under the Administrative Appeals Tribunal Act 1975 (Cth) on a review of a decision made by the Migration Agents Regulation Authority:

   140. The term “merits review” does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the “correct or preferable decision”. “Preferable” is apt to refer to a decision which involves discretionary considerations. A “correct” decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration.

   141. The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal's exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it.

   142. In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

   (Footnotes omitted)

5. As the parties acknowledged in their submissions to this Court, in undertaking a review of the Controller’s decision the Minister stands in the shoes of the Controller. This means that the Minister addresses the question which was addressed by the Controller and exercises the powers that are then available to the Controller in addressing that issue. The facts that are relevant to the Minister’s review are those which are demonstrated to exist at the time that the Minister makes the review decision, which may not be the same as those which were determined by the Controller at first instance. The powers which the Minister may exercise in making the review decision are those that would be available to the Controller if he or she were addressing the issue at the time of the Minister’s review decision. This follows of necessity from an acceptance that the Minister in making the review decision was obliged to apply the law as it existed at the time of that decision.

6. As at the date of the review decision, the Controller, if she had been addressing Fortune’s application afresh, would have been obliged to consider s 60(4) as it was at that time and decide whether special circumstances existed justifying the grant of a licence for a period of 30 years. This is exactly what the Minister was empowered, and obliged, to do in exercising her review function under s 30. The attempt by MAC to distinguish between powers available only at first instance and those available on review by the Minister is contrary to principle and is an approach not required by the words of the statute.

7. It follows that MAC is successful on Grounds of Appeal 1 and 2 (Issue 1). That, however, is not the end of the matter. By Ground 2 in the Notice of Contention, the Minister says that if Grounds of Appeal 1 and 2 are upheld, this Court should find that the primary judge erred by finding that the Minister had not complied with s 60(4).

8. It is accepted by the Minister that in her reasons for decision on review she did not directly state that she was satisfied that there were special circumstances justifying the grant of a 30-year licence. There can, however, be no doubt that the issue of the period of the proposed licence was live before the Controller at first instance, and the Review Panel and the Minister on review. As we understand the submission made by the Minister in the present appeal is that it should be inferred from all of the circumstances surrounding the granting of the Licence that the Minister was satisfied that special circumstances existed justifying a 30-year licence. There can be no doubt that a court may draw inferences from the totality of the evidence in cases such as the present. As the plurality of the High Court said in MZAPC v Minister for Immigration and Border Protection[22] at [38]:

   Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence.

   (Footnotes omitted)

9. The application by Fortune was for the grant of a 30-year licence. The decision of the Controller in granting the Original Licence was to grant a 30-year licence. This decision was based, amongst other things, on the opinion of the Minister for Environment expressed in writing on 15 February 2021 that there were special circumstances justifying a 30-year licence as identified by her. This sets the context in which what followed should be understood.

10. The next event of relevance was the referral of the applications for review of the Controller’s decision to the Review Panel by the Minister for Environment. As persons aggrieved by the decision of the Controller, MAC (at that time as part of a conglomerate of parties being represented by the CLC) and ALEC, among others, sought a review by the Minister for Environment of the Controller’s decision. The right to seek such a review is conferred by s 30(1) of the Act. The Minister for Environment then referred “the matter” to the Review Panel for advice.

11. Consistent with the role of the Minister in conducting a review under s 30 as conducting a de novo hearing, the words “the matter” in s 30 must extend beyond a simple review of whether it was open to the Controller to make the decision she did. In our opinion, it would extend to reconsideration by the Minister of whether there are special circumstances justifying a licence for a period greater than 10 years. This would be so whether the review is conducted under the unamended provisions of s 60(4) or the amended provisions. The importance of this observation is that it was part of the function of the Review Panel, both before and after the amendment to s 60(4), to advise the relevant Minister on whether a 30-year licence was justified. There is no reason to believe that the Review Panel did not understand the nature of its function.

12. Before referring to the Review Panel’s report to the Minister for the Environment, it is important to understand the specific submissions made to the Review Panel by the review parties. MAC submitted that the grant of a licence for a greater period than 10 years was inappropriate given the scientific uncertainty underlying the Groundwater Model used by the Controller to determine the amount of groundwater in the aquifer and how much of that water could be sustainably used by Fortune. This was effectively a submission that despite the special circumstances identified by the Minister for Environment and conveyed to the Controller, the Minister for Environment should, on review, find that the uncertainty around the Groundwater Model should lead to a decision on the de novo review that a licence of 30 years duration was not justified. Indeed, the submission went further, as recognised by the Review Panel, and challenged the existence of the special circumstances identified by the Minister for Environment. The submission by MAC therefore challenged the existence of the identified special circumstances and the scientific basis of the Controller’s decision.

13. It is against this background that the Review Panel stated in its report:

    Licence period

    81. In making her decision to grant the Licence for 30 years, the Controller sought the opinion of the Minister, in accordance with section 60(4) of the Water Act. The Minister affirmed that in her opinion there are special circumstances that justify a 30-year term licence.

    82. ECNT submit that the Controller should not have applied her discretion to grant the Licence for a period of 30-years given the scientific uncertainty underpinning the WAP and the risk of serious and irreversible harm.

    83. CLC submits that the Controller should not have granted the Licence for a period greater than 10 years and maintains that the special circumstances referred to by the Minister do not exist in this case and refer to the circumstances included in section 5.2.1 of the Guideline: Special Circumstances for water extraction terms of up to 30 years.

    84. The Panel is of the view that a licence term of greater than 10 years, with suitable conditions precedent and staged entitlements, is appropriate for a large-scale development such as that proposed.[23]

14. The context in which the Review Panel gave the advice set out in the previous paragraph is that the decision under review was one in which a 30-year licence had been granted. The submissions made by the review parties were, relevantly for present purposes, directed towards a decision to grant a 30-year licence. The function which the Review Panel was undertaking was advising the Minister for Environment on a hearing de novo regarding, relevantly, whether a licence of 30 years should be granted. While the advice given by the Review Panel refers to a view that “a licence term of greater than 10 years” is appropriate, in the circumstances it must be seen as advice that the special circumstances identified by the Minister for Environment would justify a 30-year licence so long as appropriate conditions and safeguards were put in place.

15. If the Review Panel had been of the view that the special circumstances identified by the Minister for the Environment did not exist, or that in combination with the other relevant material those circumstances did not justify a 30-year licence, it was the duty of the Review Panel to provide that advice to the Minister for Environment. The fact that it did not do so supports the inference that the Review Panel considered a 30-year licence to be justified.

16. On 29 September 2021, before the Review Panel delivered its advice on 14 October 2021, the amendment to s 60(4) to which we have referred took effect. After the Minister for Environment delegated her powers under s 30 of the Act to conduct the review to the Minister, on 12 November 2021 the Minister received a Ministerial Briefing in relation to the matter. The Briefing correctly identified for the Minister that her role was to conduct a merits review of the decision made by the Controller.

17. Annexed to the Briefing were limited extracts from the Act. These extracts did not include a copy of s 60, either in its form before amendment or after. In our opinion no inference can be drawn from the absence of a copy of s 60 from the limited extracts of the Act provided to the Minister and that the Minister was unaware of the need for special circumstances to be found that justify the grant of a 30-year licence. Included in the material the Minister took into account in making her review decision were the review applications lodged by each of the parties and their submissions. The issue of the term of any licence and the need for special circumstances to be found justifying a 30-year licence were, as noted above, prominent issues in the proceedings before the Review Panel.

18. In her reasons for decision, the Minister also stated that she had reviewed and considered “the relevant legislation” before making her review decision. The material before the Minister was replete with references to the need to find special circumstances. While the predominant issue raised by MAC (and other objectors) before the Controller, the Review Panel and the Minister was whether any licence should be granted to Fortune, it is abundantly clear that the Minister was aware from the totality of the material before her that:

    a)    the issue of the term of the licence was an important issue both for Fortune and MAC (and the other objectors);

    b)   the Controller had granted a licence for 30 years;

    c)    special circumstances had to be found in order to justify a licence of 30 years duration;

    d) the requirement to find special circumstances was found in s 60 of the Act;

    e)    special circumstances had been found by the Minister for Environment and had been communicated to the Controller;

    f)    the Review Panel was providing her with advice regarding, inter alia, how she should exercise her powers on review after a hearing de novo;

    g)   the Review Panel, in the context of a challenge to a 30 year lease duration, expressed the opinion that a lease term in excess of 10 years was appropriate; and

    h)   she was conducting a hearing de novo which involved, amongst other things, a requirement for her to consider the existence of the previously identified special circumstances which would justify a 30 year licence.

19. In our opinion, these circumstances strongly support the inference that the Minister was aware of the need to find special circumstances which would justify a licence of 30 years duration. The Minister’s decision was expressed as follows:

    I have determined to accept the conclusions of the Review Panel for the reasons it has given on each of the issues raised by the Reviewing Persons.[24]

20. In our opinion, the only reasonable interpretation of the Minister’s decision, in the context to which we have referred, is that the Minister determined that there were special circumstances, being those previously identified by the Minister for Environment, which justified a 30-year lease. In addition, the extract from the Minister’s Reasons set out at [42] above makes it indisputable that the Minister was aware of the fact that the review related to a decision to grant a 30-year licence and that the special circumstance identified by the Review Panel was the large scale of the proposed development.

21. In the end result, while MAC has established error on the part of the primary judge as alleged in Grounds of Appeal 1 and 2, the Minister has succeeded on Ground 2 in the Notice of Contention.

22. While it is strictly unnecessary to do so, we will very briefly consider Ground 3 in the Notice of Contention. In our opinion, MAC is correct in its submission that there is nothing in the words of the Act which would support severance of the term of a licence where it is purportedly granted for a period longer than that permitted by law. That must particularly be the case where, as here, the application by Fortune was for a 30-year licence, supported by material demonstrating that a licence of that term was necessary to make the proposed project economic, and there is no indication that Fortune would be interested in a 10 year licence. In addition, this is an issue which was not considered by any of the parties involved in the decision to grant the Licence. Contention 3 in the Notice of Contention fails.

    Issue 2: Misconstruction of ss 22B and 90(1)(ab) of the Water Act

23. Issue 2 encompasses Grounds of Appeal 3 and 4, and also raises Ground 4 in the Notice of Contention. This Issue has its provenance in ALEC’s application for judicial review before the primary judge. It was not part of MAC’s case before the primary judge. In the absence of any appeal by ALEC from the decision of the primary judge, MAC submits that it should be entitled to raise this matter on appeal. Before addressing whether MAC should be permitted to do so, we will provide some background to the Issue.

24. In the proceedings before the primary judge, ALEC pleaded that the Minister’s decision involved a jurisdictional error because the Minister failed to comply with s 22B(4) and, further and in the alternative, s 90(1)(ab) of the Act. The Particulars pleaded by ALEC in support of this allegation may be summarised as follows:

    a)    At the time of the Minister’s decision to grant the Licence, the WDWAP was in place and applied to the geographical area to which the Licence applied.

    b)   The WDWAP established a “groundwater dependent ecosystem protection area” (GDE Protection Area) which overlapped with the bore field approved by the Minister in granting the Licence.

    c)    The WDWAP relevantly provided 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:

    a.Modelled extraction does not cause the maximum depth to water table to exceed 15 metres below ground level;

    b.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

    c.Modelled extraction does not result in a rate of groundwater drawdown that exceeds 0.2 metres/year.

    (the WAP GDE criteria)

1. The primary judge stated that there was no doubt that MAC was entitled to procedural fairness in the decision making process which preceded the grant of the Licence. The content of the obligation to provide procedural fairness, his Honour said, was to be found in the Act. The primary judge then turned to the provisions of the Act.

2. Pursuant to s 71B(1) of the Act, upon lodgement of an application for a water extraction licence, the Controller must give notice of the Controller’s intention to make a water extraction licence decision. The notice must be published in a newspaper circulating in the general locality to which the application relates.

3. The notice must include an invitation to make written comments about the application to the Controller.[69] In the present case, such comments were made either by MAC or on its behalf by the CLC. These comments, and further representations and evidence on behalf of MAC, were the subject of detailed consideration by the Review Panel. A hearing took place on 3 September 2021, at which the Review Panel received representations from all parties, including the CLC on behalf of MAC. Included in the material presented by the CLC to the Review Panel, and which had not been available to the Controller, was an Aboriginal Cultural Values Assessment prepared by an anthropologist engaged by the CLC. The Review Panel stated that it was “not able to form a view on the significance of the information presented in that 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”.[70]

4. The primary judge noted that under s 71E(4)(a) of the Act, the Minister’s reasons for decision had to state the way in which the Minister has taken into account the s 71B(4) comments. The primary judge also noted that the Minister’s reasons contain multiple references to submissions made by “Reviewing Persons” (including the CLC on behalf of MAC) in relation to numerous topics including consideration of cultural values.

5. The primary judge held that the obligation of the Minister under the Act regarding s 71B(4) comments is to take them into account and to state the way in which they had been taken into account in her reasons. The primary judge, after referring to MAC’s submission set out at [215] above, said:

   The flaw in MAC’s submission…is that it seeks to impose on the Minister an obligation not only to consider the written comments made under s 71B(4), but to thereafter oblige the Minister to give the persons who made such comments the opportunity to continue to comment, even after they had made additional written representations to the Review Panel and then engaged with the Review Panel by making oral representations and calling evidence at a formal meeting.[71]

   (Italicised as per original)

6. The primary judge concluded that MAC’s entitlement to procedural fairness did not require the Minister to give it the opportunity to comment after it had made representations to the Review Panel and engaged in the Review Panel’s processes as set out above.

   The Ministers’ submissions

7. In her submissions on this appeal, the Minister submitted that the process of a review conducted by the Review Panel, with written submissions and oral representations being made on behalf of MAC, was a process which afforded procedural fairness to MAC. This was the apparent intention of the Act. The Minister submitted that MAC did not have a right to recurrent opportunities to further address matters raised in the review process.

   Fortune’s submissions

8. Fortune submitted that the primary judge had not failed to consider MAC’s submission regarding procedural fairness. The primary judge specifically referred to MAC’s submission that it was incumbent on the Minister to provide it with a further opportunity to make submissions on any proposed variation or addition to the terms of the original Licence arising from the Review Panel’s report. This demonstrated that the primary judge had considered MAC’s submission.

9. Fortune noted that the Minister’s reasons referred to submissions received by the Review Panel regarding cultural values.[72] It was after considering those submissions that the Review Panel made its recommendations to the Minister. The Minister accepted those recommendations with the exception of the proposed variation of Stage 1 to 5 years. Fortune submitted that the primary judge was correct to conclude that the Minister was not required to give MAC any further opportunity to make representations after receipt of the Review Panel report.

10. Fortune submitted that MAC’s complaints could be divided into two categories:

    a)    it was not given the opportunity to ascertain the relevant issues because it was not informed of the possibility that steps would be imposed as conditions attaching to the Licence was granted; and

    b)   it was not informed of the nature and content of any adverse material being further submissions that the Minister received from Fortune.

11. Regarding the first of these complaints, Fortune submitted that it was apparent from the terms of the Original Licence that it had been considered appropriate to attach conditions precedent. There could be no basis upon which MAC could contend that it was unaware of the possibility that relevant matters could be dealt with by the Minister by the imposition of conditions precedent. The Review Panel had regard to the submissions made by the CLC on behalf of MAC and recommended, by way of conditions precedent, that a cultural values impact assessment be carried out. The Minister accepted the recommendation of the Review Panel, and in her reasons stated:

    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...[73]

12. Accordingly, Fortune submitted, the Minister’s reasons for decision expressly had regard to the impact of the Licence on cultural values and this matter was addressed by the imposition of CP10. This plainly reflected a consideration of the CLC’s submissions. Fortune submitted that the primary judge was correct to hold that the Minister was not required to provide the appellant with any further procedural fairness with respect to the decision to add the new CP10.

13. Regarding the second complaint identified by Fortune, it submitted that MAC had failed to identify what aspects of the correspondence between the Minister and Fortune was adverse to MAC’s interests. Fortune submitted that the content of the correspondence was not adverse to MAC’s interests and the Minister was not required to afford MAC a further opportunity to be heard.

    Consideration

14. The law regarding the obligation to provide procedural fairness is well settled. The obligation to afford procedural fairness is a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the case. The statutory framework within which a decisionmaker exercises statutory power is of critical importance when considering what procedural fairness requires.[74] The content to be given to the requirement to afford procedural fairness will depend upon the facts and circumstances of the case and is informed by the legislative purpose and context, and the nature of the power or function being exercised.[75]

15. It is accepted by all parties that the Minister had an obligation to provide procedural fairness to MAC in considering its application for review of the Controller’s decision. The point of contention between MAC and the other parties is as to what was required to satisfy that obligation in the circumstances of the present case.

16. There can be no doubt that the Review Panel and the Minister took into account the submissions made by the CLC regarding the potential impact of the Licence on Aboriginal cultural values. The correspondence between the Minister and the Review Panel (see [199]-[203] above) was clearly designed to give the Minister a clear understanding of the recommendations made by the Review Panel. At that point in time, the Minister was still considering the report of the Review Panel. Correspondence between the Minister and the Review Panel for the purpose of clarifying the recommendations of the Review Panel was not an occasion for further submissions by MAC on the requirements for a cultural values impact assessment, even assuming MAC had a right to be heard on those requirements.

17. We are unable to accept MAC’s assertion that it was effectively taken by surprise by the Minister’s decision to address the need for a cultural values impact assessment by means of a condition precedent. In CLC’s submissions to the Review Panel, it referred to the report prepared by the consultant anthropologist on its behalf and submitted that the report shows there are significant and numerous cultural values associated with multiple sites in the “drawdown area”. It was submitted that the report identified the cultural values of the extraction and drawdown area. The submissions went on to say:

    There is no question substantial further work needs to be done. This work goes beyond what is presently required by CP5. Further, it is not appropriate to relegate the significant matter to a licence condition; it should be addressed as part of the application itself so that specific and considered conditions can be imposed, or the licence refused, if effective conditions are not possible.[76]

18. In the above, the CLC clearly alludes to the possibility that the requirement for a cultural values impact assessment may be addressed by way of a condition precedent, but submits that this approach would be inappropriate. The CLC had the opportunity at this point to make submissions regarding the requirements for an appropriate cultural values impact assessment had it chosen to do so.

19. In any event, it is beyond doubt that the CLC, at that time representing MAC, was aware that the Original Licence addressed multiple matters relevant to the taking of water by means of conditions precedent. The CLC was alive to the possibility that the Minister may decide to take the same approach regarding a cultural values impact assessment. The CLC chose to simply submit that it was not appropriate that the matter be addressed by a condition precedent. While the CLC undoubtedly hoped that the Minister would accept that submission, it had no legitimate expectation that she would do so, nor did it have a right to make further representations to the Minister on this issue before the Minister granted the Licence.

20. For the reasons that we have already given, the Minister was entitled to impose conditions precedent to the Licence, which Fortune was required to satisfy before it could commence extracting any significant water under the Licence. The Minister was therefore entitled to address the need for a cultural values impact assessment by way of a condition precedent. As the Minister was standing in the shoes of the Controller in deciding the review it was appropriate that the Controller would be the person responsible for ensuring that an appropriate assessment was conducted.

21. It is important to consider the legitimate means employed by the Minister to address areas of uncertainty surrounding Fortune’s proposal while at the same time giving in-principle approval to the project. The means chosen by the Minister was to grant the Licence subject to conditions precedent. In making the decision to impose CP10, the Minister was not purporting to make a decision as to what would be required for an appropriate cultural values impact assessment. For the reasons that follow, we are satisfied that the decision as to what was required for such an assessment was left to the Controller.

22. It is important to consider the terms of the Licence. Many of the conditions precedent require Fortune, as the licence holder, to “develop and submit for approval” by the Controller specified programs, plans or other documents. As MAC pointed out, a different approach is adopted with regard to CP10. It is worthwhile setting out CP10 in its entirety at this point:

    CP10. The licence holder must develop and submit to the Controller a groundwater dependent Aboriginal cultural values impact assessment. The assessment must:

    (a) be prepared by a suitably qualified professional;

    (b) identify, map and document (as appropriate) the cultural values of Aboriginal people that will be impacted by groundwater extraction under this licence;

    (c) identify reference points to be used in modelling the impacts of groundwater extraction under this licence on the identified Aboriginal cultural values; and

    (d)specify monitoring parameters, trigger values and limits for the reference points which can be used to initiate actions under an adaptive management framework.[77]

23. The terms of CP10 require Fortune to “develop and submit to the Controller” a cultural values impact assessment. The Licence does not identify what is required for a “groundwater dependent Aboriginal cultural values impact assessment”. That term is not defined in any way in the Licence. Nor does the Licence identify the characteristics of “a suitably qualified professional” to prepare the assessment. This, however, does not mean that Fortune can simply proceed as it pleases in satisfying that condition or that the Minister has abrogated the decision on these matters to Fortune.

24. It is important to note that CP2 provides that the “licence holder must seek and obtain approval in writing from the Controller that the Conditions Precedent have been fulfilled”. That means that, regarding the requirements of CP10, Fortune must obtain the Controller’s approval that the requirements of that condition have been satisfied. That, in turn, will require the Controller to be satisfied (amongst other things) that what Fortune has submitted:

    a)    is a groundwater dependent Aboriginal cultural values impact assessment; and

    b)   was prepared by a suitably qualified professional.

25. The submission of an assessment by Fortune may, at that point, require the Controller to provide procedural fairness to MAC before the Controller decides whether the requirements of CP10 have been satisfied. It may be argued that procedural fairness may require MAC to be consulted as to these matters before an assessment is undertaken so that the Controller may give directions to Fortune regarding what will be required as to these matters if the Controller is to be satisfied that the requirements of CP10 are met. This was accepted by Fortune in its letter of 12 November 2021.[78]

26. As an aside, and on a more practical note, it is obvious that it would be in Fortune’s commercial interests to consult with government and other stakeholders such as MAC regarding the requirements for an assessment and an appropriately qualified person to undertake the assessment. It is Fortune which accepts the commercial risk that the Controller may ultimately not be satisfied that the requirements of CP10 have been met. That risk may be reduced by appropriate consultation.

27. It is sufficient for present purposes to note that, as a result of the means adopted by the Minister to address the need for a cultural values impact assessment, in granting the Licence the Minister was not purporting to determine what was required as part of a cultural values impact assessment or who would be the appropriate person to undertake the assessment. As such, no occasion arose for the Minister to provide MAC with an opportunity to address those matters. The Minister made two determinations regarding these matters: (a) that there was a need for a cultural values impact assessment before Fortune could take any volume of water under the Licence other than that permitted in Stage 1; and (b) that this would be addressed by a condition precedent. MAC was given the opportunity to be heard on both.

28. In our opinion, the primary judge was correct to hold that the Minister was not required to provide MAC with a further opportunity to make representations before granting the Licence.

29. Grounds of Appeal 10, 11 and 12 fail.

    Orders

    1.The appeal should be dismissed.

    2.Any application for costs is to be filed within 21 days of the delivery of these orders.

-------------------

[1] (2009) 240 CLR 140.

[2]Section 30(4) of the Act.

[3]Section 22B(1) of the Act.

[4]AB 672.

[5]      Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Planning as Delegate of the Minister for Environment & Anor; Arid Lands Environment Centre Inc v Minister for Environment & Anor [2024] NTSC 4 (MAC NTSC 4).

[6]      Section 9(2) of the Act.

[7] Section 90(1)(ab) of the Act.

[8](1980) 144 CLR 13.

[9] Section 30(3)(a)(ii) of the Act.

[10]    MAC NTSC 4.

[11]    Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [35] – [38], [40] (Kirby J); [100] (Hayne and Heydon JJ) [143] (Kiefel J, with whom Crennan J agreed) (Shi); Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning (1999) 86 FCR 266 at [56]; Kavvadias v Commonwealth Ombudsman (1980) 1 FCR 80 at 81 ; Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943-945.

[12]    AB 56.

[13]    MAC NTSC 4.

[14] (2015) 35 NTLR 140.

[15](NSW) (1978) 1 ALD 167 at [175] – [176].

[16] [2004] SASC 415 (Michelmore).

[17] (1992) 174 CLR 430 at 448.

[18]    MAC NTSC 4.

[19](2024) 98 ALJR 610 at [29] (per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

[20] See [38] above.

[21] Section 30(4) of the Act.

[22][2021] HCA 17.

[23]    AB 105-106.

[24]    AB 58.

[25]    MAC NTSC 4.

[26] Supra at [39].

[27]    DVO16 v Minister for Immigration and Border Protection and Anor [2021] HCA 12; (2021) 273 CLR 177 at [12].

[28]    MAC NTSC 4 at [45]. .

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

[30]    MAC NTSC 4.

[31]    Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; JB & Ors v Northern Territory of Australia [2019] NTCA 1 at [217].

[32]    University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 7.

[33]    Water Board v Moustakas (1988) 180 CLR 491 at 497; Multicon Engineering Pty Ltd v Federal Airports Corp (1997) NSWLR 631 at 644.

[34] Section 60(2) of the Act.

[35]    Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 (Mison); Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301 at [163] (Buzzacott).

[36]    Mison at 737; Buzzacott at [163]; Queensland v Humane Society International (Australia) Inc (2019) 272 FCR 310 at [109] – [113].

[37]    Mison at 737; Buzzacott at [163].

[38]    Mison at 739-740; Buzzacott at [165].

[39]    GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at [48].

[40]    MAC NTSC 4.

[41]    AB 1707-1708.

[42]    AB 1714.

[43]    AB 104-105.

[44]    AB 105.

[45]    AB 100.

[46]AB 96.

[47]    MAC NTSC 4.

[48]    MAC NTSC 4.

[49]    King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 194 and 195-196; Television Corporation Ltd v Commonwealth; Amalgamated Television Services Pty Ltd v Postmaster-General (Cth) (1963) 109 CLR 59 at 71.

[50]    Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] and [93]; TAB Ltd v Racing Victoria Ltd [2009] VSC 338 at [32].

[51] (2012) 187 LGERA 161.

[52]    Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 at 113-114 and 128.

[53]    Section 34 of the Act.

[54]    Section 70 of the Act.

[55]    Section 93 of the Act.

[56]    Section 96(2)(a) of the Act.

[57]    AB 97.

[58]    AB 97-98.

[59]    MAC NTSC 4.

[60]    AB 1682.

[61]    AB 1681.

[62]    AB 1697.

[63]    AB 1700.

[64]    AB 1701-1702.

[65] MAC’s Outline of Submissions in Reply dated 13.08.24 at [51].

[66]AB 2204-2205 (Amended Originating Motion Between Parties dated 10.05.22).

[67]    AB 2360.

[68]    AB 2234.

[69]Section 71B(4) of the Act.

[70]    AB 98.

[71]    MAC NTSC 4 at [211].

[72]See [220] above.

[73]    AB 58.

[74]    SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26](SZBEL); Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 46 at [97].

[75]    SZBEL at [26]; Kioa v West (1985) 159 CLR 550 at 584-585.

[76]    AB 1307.

[77]    AB 1724-1725.

[78] See [202] above.