Murray Lower Darling Rivers Indigenous Nations v Commonwealth

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FEDERAL COURT OF AUSTRALIA

Murray Lower Darling Rivers Indigenous Nations v Commonwealth [2025] FCA 1029

File number: NSD 1201 of 2023
Judgment of: STEWART J
Date of judgment: 29 August 2025
Catchwords:

ENVIRONMENT LAW – where the State of New South Wales submitted a water resource plan to the Murray-Darling Basin Authority and requested that the plan be given to the Commonwealth Minister for the Environment and Water for accreditation pursuant to the statutory regime in the Water Act 2007 (Cth) – where the Authority gave the plan to the Minister and recommended that it be accredited – where the Minister accredited the plan resulting in a legislative instrument – where Minister concedes that in making the decision the plan was not before her so the accreditation and instrument should be set aside

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – where applicant is a not-for-profit entity representing a confederation of First Nations from the lower Murray-Darling Basin – where applicant alleges the consultation conducted by the State with First Nations in the Murray-Darling Basin was improperly carried out and incomplete – where consultation said to have failed to have regard to the water management uses and outcomes and views on native title of certain First Nations – where applicant thereby challenges the decision of the Authority to recommend the water resource plan on the basis that it was inconsistent with the Basin Plan 2012 (Cth)

STATUTORY INTERPRETATION – where defective consultation is said to result in inconsistency between the water resource plan and the requirements of the Basin Plan 2012 (Cth) as required by the Water Act – whether the Authority’s decision to recommend accreditation under s 63(3) of the Water Act is invalid because of the inconsistency with the Basin Plan – whether there is an objective jurisdictional requirement of consistency in order to make a recommendation

ADMINISTRATIVE LAW – where applicant contends that the Authority’s decision to recommend accreditation was legally unreasonable – where Authority is said to have incorrectly understood its functions and asked itself the wrong question – impugned considerations include asking whether it is “fair” for the State to meet adverse advice regarding past consultation or having regard to representations by the State that it would carry out future consultation  
Legislation:

Constitution, ss 51(i), (xxix), (xxxvii), 98, 100

Judiciary Act 1903 (Cth), s 39B

Legislation Act 2003 (Cth)

Water Act 2007 (Cth), Pt 2, ss 3, 4, 9, 9A, 19(2), 20, 21, 22, 33(1), 34(1), 53, 54, 55, 56, 63, 68, 69, 72, 171

Water Amendment Act 2008 (Cth)

Water Amendment (Review Implementation and Other Measures) Act 2016 (Cth), Sch 1 cl 22

Basin Plan 2012 (Cth), Ch 10, ss 3.05, 3.06, 10.01, 10.05, 10.07, 10.26, 10.41, 10.49, 10.52, 10.53, 10.54

Federal Court Rules 2011 (Cth), r 40.51(1)

Water (Accredited Water Resource Plan – NSW Murray-Darling Basin Fractured Rock) Instrument 2022 (Cth)

Water Management Act 2000 (NSW), ss 45(1), (5A), 50

Water Sharing Plan for the NSW Murray Darling Basin Fractured Rock Groundwater Sources…

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Details
Case
[2025] FCA 1029
Decision Date

CaseChat Overview and Summary

In the case of Murray Lower Darling Rivers Indigenous Nations v Commonwealth, the applicant, a not-for-profit entity representing a confederation of First Nations from the lower Murray-Darling Basin, challenged the decision of the Murray-Darling Basin Authority to recommend the accreditation of a water resource plan by the Commonwealth Minister for the Environment and Water. The applicant argued that the consultation conducted by the State of New South Wales with First Nations was improperly carried out and incomplete, and that this failure to consult adequately meant that the water resource plan was inconsistent with the Basin Plan 2012. This inconsistency, the applicant argued, rendered the Authority's recommendation to accredit the plan invalid under the Water Act 2007.

The legal issues the court had to decide included whether the defective consultation rendered the water resource plan inconsistent with the Basin Plan, whether this inconsistency made the Authority's recommendation invalid, and whether the Authority's decision to recommend accreditation was legally unreasonable. The court had to interpret the relevant statutory provisions, particularly sections 63 and 55 of the Water Act, and the Basin Plan, to determine the requirements for consistency and the extent to which the Authority's recommendation was subject to judicial review.

The court found that the Minister's decision to accredit the water resource plan and the resulting legislative instrument should be set aside because the Minister did not have the plan before her when making the decision. Regarding the recommendation by the Authority, the court concluded that the Authority's decision was not invalid due to inconsistency with the Basin Plan. The court reasoned that the statutory scheme did not require strict compliance with the Basin Plan for the Authority to make a recommendation. Instead, the Authority's role was to evaluate the degree of consistency, which involved a policy judgment. The court further found that the Authority had not acted outside its jurisdiction in making its recommendation. Consequently, the applicant's challenge to the Authority's recommendation was dismissed.

ORDERS:
1. The accreditation decision by the Minister and the legislative instrument be set aside and declared to be invalid and of no effect.
2. The proceeding otherwise be dismissed.

Orders

Orders of the court

3. The proceeding otherwise be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Commonwealth respondents have conceded the relief in respect of steps 2 and 3, the Minister’s decision and the instrument, leaving only the challenge to the recommendation by the Authority to be substantively dealt with.THE MINISTER’S DECISION AND THE LEGISLATIVE INSTRUMENT It is just as well to deal first with the parties’ agreement that the accreditation decision by the Minister and the legislative instrument that followed be, respectively, set aside and declared to be invalid and of no effect. The agreed basis for that relief is the following as set out in a document jointly provided to the Court:a.Pursuant to s 63(5) of the [Water Act], in determining whether or not to accredit the FRWRP, the Minister was required to consider the proposed water resource plan and the recommendations given to her by the Authority under s 63(3) (Authority’s recommendations).b.While the Minister had before her a range of material including the Authority’s recommendations and a brief of material prepared by her Department, for the purposes of this proceeding, she is taken to have admitted that she did not have a copy of the FRWRP before her (see Applicant’s submissions [79]-[89]).c.As the Minister is taken to have admitted that she did not have a copy of the FRWRP before her, and the briefing material did not purport to provide a complete summary of the contents of the FRWRP, the Minister concedes that in making the Accreditation Decision she failed to comply with s 63(5) of the Water Act and that the decision should therefore be set aside. I am satisfied that the Minister’s decision and hence the resultant legislative instrument suffer from the identified deficiency and that that justifies and requires the relief in relation to them that the parties seek by consent. I will make orders accordingly. The remainder of these reasons deal with the applicant’s claim for relief in respect of the Authority’s recommendation to the Minister.THE APPLICANT’S CASE IN BROAD OUTLINE: THREE ISSUES The parties agree that the three issues for determination are the following (as jointly recorded at CB89). The first issue is identified with reference to [32(a)] of the further amended statement of claim (FASOC) and is posed as follows:Was the [Authority’s] decision to recommend accreditation of the Water Resource Plan (under s 63(3) of the Water Act) invalid because the Water Resource Plan, and supporting Materials, did not demonstrate consistency between the Water Resource Plan and the Basin Plan in respect of consultation with First Nations under the Basin Plan? In order to more fully understand the basis on which that issue arises, it is necessary to pay some attention to the FASOC. Doing the best that I can with an extraordinarily complicated pleading with definitions within definitions within further definitions, the basis to the first issue is constituted by the contention that the Authority’s accreditation recommendation was not lawfully made because the proposed FRWRP in respect of which it was made was not consistent with the Basin Plan in that:(1)the objectives of Indigenous peoples in relation to managing the water resources of the water resource plan area and the outcomes for the management of the water resources of the water resource plan area desired by Indigenous people were not identified for the Tati Tati and Barkandji Nations as required by s 10.52(1) of the Basin Plan 2012 (Cth) (FASOC [32(a)(i)] read with [14A(a)] and [14(c)]); and(2)the FRWRP did not demonstrate that the requirement under s 10.52(2) of the Basin Plan for NSW to have regard to Indigenous values and Indigenous uses as determined through consultation with relevant Indigenous organisations was satisfied with respect to the Tati Tati and Barkandji Nations (FASOC [32(a)(ii)] read with [14A(b)], [14(a)] and [14(f)]).

Ratio Decidendi

Legal Principle Established

In the assessment report the Authority on this criterion acknowledged NSW’s qualified approach to native title consultation. Nevertheless, the Authority noted that “views with respect to native title” were set out in various components of the consultation reports attached to Schedule C to the Central Document. This, as well as other supporting materials in the FRWRP, was relied on for the conclusion that “the range of relevant Indigenous organisations was sufficient to enable NSW to understand broadly the views of the Indigenous people of the WRP area”. Although the Authority was aware of the concerns raised by the applicant on this aspect, the Authority considered that the material did “demonstrate regard to views about native title and ILUAs” and that the requirement had been met.Consideration The applicant principally contends that the incomplete consultation referred to in the documentary evidence above for each of the Tati Tati and Barkandji Nations constituted a failure to comply with the content requirements of s 10.52 in the Basin Plan. More particularly, it is said that because of the failure of the Basin State, NSW, to consult with the Tati Tati and Barkandji Nations there was a failure to have “regard” to the matters in s 10.52(2) in relation to those Nations and hence a failure to “identify” the “objectives” and “outcomes” required by s 10.52(1). It is also said that there was a resultant failure to have “regard” to certain matters as required by s 10.53(1). To similar effect, the applicant contends that the incomplete consultation of Indigenous organisations (including the Tati Tati and Barkandji Nations referred to above), by omitting to consult those who had not been party to a formal native title process, constituted a failure to have “regard” to the views prescribed in s 10.53(1)(a). The failures are said to indicate inconsistency between NSW’s proposed FRWRP and the Commonwealth’s Basin Plan. The applicant submits this inconsistency means the Authority’s decision to recommend accreditation of the FRWRP to the Minister is invalid because a necessary jurisdictional fact for a valid recommendation is that the FRWRP is compliant with the Basin Plan as required by s 55(2) of the Water Act. The Commonwealth respondents deny that there was any non-compliance with respect to the requirements of the Basin Plan, and further say that the requirement of “consistency” does not have the effect of requiring strict “compliance” with each provision of the Basin Plan. In addition, the Commonwealth respondents submit that the Water Act scheme does not pre-condition the Authority’s power to recommend accreditation on satisfaction of consistency or objective consistency with the Basin Plan since the Authority’s role under s 56(1) of the Water Act is to consider the extent of that consistency requiring an evaluative judgement of degree and policy. The Commonwealth respondents accept that the recommendation of the Authority is a necessary step in the process towards the accreditation of a water resource plan by the Minister and it then being made as a legislative instrument. For that reason they accept that the recommendation, although not binding on the Minister, is an administrative act that is subject to judicial review, citing Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 580.