Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families &... [2024] NTSC 4 | Case summary

Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families &... [2024] NTSC 4 | Case summary | Zoe

[26]

[1] The second defendant ("Fortune") is the lessee under Perpetual Pastoral Lease 1022 of Northern Territory Portion 653, which comprises some 2,949 square kilometres of land known as Singleton Station. The property is situated in the Western Davenport region of the Northern Territory, approximately 380 km north of Alice Springs.
[2] Fortune proposes to develop approximately 3,500 hectares of Singleton Station for the purpose of intensive irrigated horticulture. The proposed 'Singleton Horticulture Project' involves the development in sequence of nine separate blocks, each of about 400 hectares, over an eight-year period. Each block would have 16 interlinked irrigation bores, a total of 144 such bores. Fortune has identified the most suitable crops as mandarins, table grapes, dried grapes, onions, avocados, muskmelons and jujube. The success of the Project is dependent on Fortune having access to significant quantities of groundwater, increasing to 40 gigalitres or 40,000 megalitres (ML) of water per annum once the project is fully developed. The water requirement will increase in parallel with the development program such that Fortune anticipates that it will require the maximum water allocation three to four years after Year 8 of crop planting, when trees approach maturity.[1]
[3] The plaintiff Mpwerempwer Aboriginal Corporation ("MAC") is the prescribed body corporate for the native title holders of the Singleton pastoral lease. MAC has a statutory role to act as their agent. The native title holders hold rights and interests which co-exist with the rights of Fortune as the lessee of the pastoral lease, including the right of access for the purpose of maintaining and protecting places and areas of importance on the land, the right to hunt and gather, and the right to take and use the natural resources of the land and waters.
[4] The primary contention made by MAC on behalf of the native title holders is that the taking of water pursuant to the proposed licence is modelled to significantly lower the water table across a large area of the pastoral lease, which is likely to reduce access to water, to damage sacred sites and affect the availability of animal species.
[5] The plaintiff Arid Lands Environment Centre Inc ("ALEC") is an environmental organisation in Central Australia which aims to support local people in the protection of arid lands. The central object, stated in its constitution, "is to protect the environment and ensure healthy futures for arid lands and peoples".[2]
[6] ALEC commenced proceedings on 13 January 2022. MAC commenced proceedings on 28 January 2022. An order was made on 10 March 2022 that the two proceedings be tried at the same time and determined together.[3] A further order was made that evidence in each proceeding was to be treated as evidence in both proceedings. The parties' cases, as consolidated, were heard over three days in September 2022.
[7] The defendants did not contest the standing of the plaintiffs to bring the proceedings respectively commenced by each of them.

[27]

[8] Under s 22 of the Water Act 1992 ("the Act"), the Minister may declare part of the Northern Territory to be a water control district and allocate a name to the district. Section 22B(1) of the Act provides that the Minister may declare a water allocation plan in respect of a water control district. Singleton Station is within the declared Western Davenport Water Control District and the relevant water allocation plan was the Western Davenport Water Allocation Plan 2018-2021 ("the WDWAP"). Section 22B(4) of the Act provides that "water resource management" in a water control district is to be in accordance with the water allocation plan declared in respect of the district.
[9] On 18 August 2020, Fortune applied to the Controller of Water Resources ("the Controller") under s 60 of the Act for a licence to take groundwater from Singleton Station for the purpose of the proposed horticulture project described in [2] above.
[10] On 8 April 2021, the Controller decided under s 60 of the Water Act to grant Fortune a water extraction licence, being WDPCC100000 (the "Controller's decision").[4] The licence, which was subject to extensive conditions (including eight conditions precedent and staging conditions), allowed Fortune to take up to 40,000ML of groundwater per annum from aquifers in the Central Plains Management Zone in the Western Davenport Water Control District. The groundwater was to be taken from Singleton Station.
[11] In making the decision to grant the water extraction licence, the Controller had regard, inter alia, to a document entitled "Guideline: Limits of acceptable change to groundwater dependent vegetation in the Western Davenport Water Control District" ("the Guideline").[5] The stated purpose of the Guideline was to "provide guidance to applicants for water extraction licences in the Western Davenport Water Control District". It may be noted that the Guideline was, by express words, "intended to be read subject to the Western Davenport Water Allocation Plan 2018-2021".[6] The Guideline was not given any express recognition or significance under the Water Act 1992. Counsel for ALEC described it as "at best a statement of Departmental policy".
[12] In May 2021, pursuant to s 30(1) of the Act, ALEC and MAC (and other aggrieved parties) sought a review by the Minister for Environment of the decision of the Controller to grant the water extraction licence. The grounds relied on are set out in [13] and [14] below. Both ALEC and MAC submitted that the Minister should set aside the Controller's decision and substitute a decision to refuse the licence.
[13] ALEC set out the following grounds in its application for review:[7]
- The Controller failed to appropriately assess the Licence in accordance with the WAP.
- The Licence is inconsistent with the WAP and was therefore granted in breach of the Water Act.

[71]

[32] In their summary of the grounds relied on, Counsel for ALEC contend that the Minister erred in her decision to grant the licence in at least the three ways set out in the following paragraphs.[20]
[33] First, it is said that the Decision failed to accord with specific drawdown limits identified in the WAP, which were intended to protect groundwater dependent ecosystems. Under s 90(1)(ab) Water Act 1992, the Minister was required to take the WAP into account, while s 22B(4) of the Act required that water resource management (including licensing decisions) be in accordance with the WAP. Rather than applying the WAP, the Minister chose instead to apply a Departmental policy document (the Guideline referred to in [11] above), developed in consultation with Fortune, which had no statutory significance under the Water Act 1992 and which was said to be "fundamentally inconsistent" with the WAP.
[34] Second, it is said that the Minister erred in imposing various conditions precedent which operated to defer consideration of matters which, for the decision to have been lawfully made under s 30(3)(a)(ii) of the Act, were required to be determined prior to, or in the course of, making the purported decision. The result of the conditions precedent was that the Minister left for a later decision an important aspect of the proposal which could result in a significant alteration of the proposal. That was said to violate the principle of finality with respect to ambulatory conditions recognised in the long-standing Mison and Unley line of authorities.[21]
[35] Third, it is said that the Decision was legally unreasonable "in that central planks of the analysis in support of the conclusions reached exhibited illogicality", in particular, the Minister's conclusion that her decision was consistent with the WAP was illogical. It is also said that those aspects of the Panel's reasons (adopted by the Minister) which took the Guideline into account as 'a relevant factor' because it constituted 'new scientific knowledge' were also illogical on the evidence before the Panel and Minister.
[36] The plaintiff MAC seeks an order in the nature of certiorari quashing the Licence bearing licence number WDCP 10358; alternatively, a declaration that the Licence is invalid insofar as it provides for any entitlement to take water in excess of 12,788 ML/year.
[37] The grounds relied on by MAC are as follows:[22]

[110]

[44] In relation to s 90(1), a water extraction licence is for present purposes a licence under s 60 of the Act to take water from a bore. The expression 'a water extraction licence decision' should be read accordingly. As mentioned in [25], the Water Act 1992 does not prescribe independent criteria to be applied by the Minister on a review of the Controller's decision. Therefore, the matters which the Minister was required to take into account in carrying out the review and making a water extraction licence decision were those s 90(1) factors which were relevant to the decision. The Minister was required by s 90(1)(ab) to take into account the WDWAP (on the basis that it was relevant to the Minister's decision, and that is common ground in ALEC's proceeding) but was also required to take into account the other specified factors as well as the unspecified factors referred to in s 90(1)(k) as: "other factors the [Minister] considers should be taken into account ...". The Minister was also required to take into account comments made by interested persons in response to the Controller's notice of intention to make a water extraction licence decision published pursuant to s 71B(1) of the Act. In my opinion, that requirement arises by implication from s 71C(2) and s 71E(4)(a) of the Act which required that the review decision state or explain the way in which the Minister had taken into account comments made (to the Controller) in accordance with s 71B(4) as well as "any relevant factors mentioned in s 90(1)".
[45] In my opinion, the statutory requirement to 'take into account' the factors listed s 90(1) of the Act is a requirement to give consideration to them, that is, to engage in an "active intellectual process" directed at those factors,[26] or at least at those factors relevant to the decision. There are 11 factors specified in s 90(1). There is no requirement that any one or more of the factors are fundamental considerations in the water extraction licence decision.[27] Moreover, the sub-section does not provide an exhaustive list of the factors that the Minister must take into account as relevant in any given case, since s 90(1)(k) allows the Minister to take into account 'other factors' which the Minister considers should be taken into account. There is nothing in the language of s 90(1) which requires that the Minister give particular weight to any one factor or group of factors nor is there any indication that one or more factors are to be accorded primacy. This is unsurprising, given that the decision to grant a water extraction licence is multifactorial and involves the balancing of a range of relevant but possibly disparate considerations.
[46] In general, absent any statutory or contextual indication of the weight to be given to the factors which a decision maker is required to take into account, it is for the decision maker to determine the appropriate weight to be given to them.[28] The weight to be given to any one factor or group of factors may well vary from case to case. Moreover, the decision maker is not even obliged to take into account all of the s 90(1) factors, since the obligation is to take into account only those "that are relevant to the decision".
[47] In relation to s 90(1)(ab), I accept the submission of counsel for the Minister that the language employed is very different to a requirement that the decision maker is "bound by", "must follow" or "must adopt" the provisions of an applicable water allocation plan. I would add that there is no requirement that a water extraction licence decision must accord with, or not be inconsistent with, a water allocation plan applying to the area in question. The purpose of the statutory requirement that the decision maker take into account any applicable water allocation plan (in addition to many other factors) is to allow the decision maker to be guided by any such plan but not to be fettered in a way which would preclude consideration of a water extraction licence application which did not meet the criteria set out in the plan.
[48] In the present case, considerable leeway should be afforded to the Minister in relation to determining the validity of the impugned decision to grant a water extraction licence, not only because the factors to be taken into account must pass through the filter of relevance, but also because the weight to be given to those factors is then for the Minister to determine. Further, the range of factors which the Minister must take into account is substantially expanded by the inclusion of the "other factors" (referred to but not expressly specified in s 90(1)(k)) which the Minister considers "should be taken into account". My conclusion is that the Minister has a wide discretionary power under s 90(1) Water Act 1992.
[49] The question to be considered is whether and to what extent s 22B(4) of the Act limited that wide discretionary power. In other words, did the requirement that 'water resource management' be in accordance with the WDWAP oblige the Minister to refuse a water extraction licence application in circumstances where the proposal did not fully or substantially accord with the water allocation plan.
[50] The contentions put on behalf of ALEC depend on whether s 22B(4) compelled the Minister (who was required under s 90(1)(ab) to "take into account" the WDWAP) not merely to consider the WDWAP but to act in accordance with all of the principles and requirements stated in it. The underlying thrust (or at least the logical extension) of ALEC's contentions is that the WDWAP has primacy in the exercise of the discretionary power under s 90(1) of the Act, such that there could be no lawful departure from its provisions.
[51] Section 22B Water Act 1992 is in Division 1 (General Administration), one of several divisions within Part 3 (Administration). Sections 22A and 22B were inserted by the Water Amendment Act 2000.[29] Section 22B has remained substantially unaltered.[30] That section is concerned with water allocation plans and water resource management. In order to determine the meaning of the undefined phrase 'water resource management' in s 22B(4), it is appropriate to have regard to the legislative purpose, since a construction promoting the purpose or object underlying an Act is to be preferred to a construction that does not do so. It does not matter whether the purpose or object is expressly stated in the Act or not.[31]
[52] A general statement of the purpose or object of the Water Act 1992 is set out at the head of the Act, before Part 1, in the following terms:

[121]

[54] I note the Minister's reference to "the water allocation planning process". The Minister's explanatory speech identified the purpose or intended result of a declared water allocation plan as the appropriate sharing of available water resources in a water control district between the mix of beneficial uses in that district. That was consistent with (the subsequently enacted) s 22B(5) of the Act, which specified the objectives of a water allocation plan as ensuring that water would be allocated within the estimated sustainable yield to beneficial uses, and that the total water use for all beneficial uses would be less than the sum of the allocations to each beneficial use.[33] In my opinion, planning and management of the water resource in a water control district was and remains the meaning of 'water resource management'.
[55] The legislative history of s 90(1) does not support ALEC's contentions. Immediately prior to 6 June 2000, s 90(1) specified factors or matters the same or substantially the same as those contained in the present paragraphs (a), (b), (c), (d), (e), (f), (g), (h)(j) and (k).[34] However, under s 90(1) as it then stood, they were matters the Controller "may take into account". In contradistinction, s 90(1A) Water Act 1992 stated that the Controller "must take into account any water allocation plan applying to the area in question".[35]
[56] The Water Amendment Act 2007 made relevant amendments to s 90(1) and s 90(1A).[36] The specified factors in s 90(1) became matters which the Controller was obliged to take into account ("the Controller must take into account ..."), subject to relevance ("any of the following factors that are relevant to the decision"). Further, the factor previously contained in s 90(1A) was now part of s 90(1), as the newly inserted s 90(1)(ab): "any water allocation plan applying to the area in question".
[57] The effect of the 2007 amendments was that the requirement for the Controller to take into account any applicable water allocation plan, which had previously been an independent mandatory consideration under s 90(1A), arguably predominant over the s 90(1) discretionary factors, was now on 'equal footing' with the s 90(1) factors, and, like them, subject to relevance. Further, the factor specified in s 90(1)(k) which the Controller was required to take into account ("must take into account") was amended to read: "(k) other factors the Controller considers should be taken into account or that the Controller is required to take into account under any other law in force in the Territory".
[58] I refer to the conclusion stated in [54] above. In my opinion, s 22B(4) Water Act 1992 has a different sphere of operation to that contended for by ALEC. It is not directed to the weight to be given to a water allocation plan in a water extraction licence decision, which is addressed under s 90(1) of the Act. It does not predetermine a water extraction licence decision so as to prohibit any departure from the provisions of a declared water allocation plan. If that were not so, it would be contrary to the wide discretion given to the Minister under s 90(1) of the Act, discussed in [48] above.
[59] Given my conclusions in relation to (1) the meaning of the phrase 'water resource management' in s 22B(4) Water Act 1992 and (2) the nature of the requirement to 'take into account' various factors under s 90(1) of the Act, ALEC's first ground of review must fail. In making the water extraction licence decision, the Minister did not have a statutory obligation to "comply with" s 22B(4) of the Act. Further, although the Minister had a statutory obligation under s 90(1)(ab) of the Act to take into account the WDWAP, the Minister did not have a statutory obligation to "comply with" the WDWAP in the sense asserted by ALEC. More specifically, with respect to particular d. of ground 1, the Minister did not have a statutory obligation to apply and make a licence decision in strict accordance with Part 8.2.1 of the WDWAP. Finally, in relation to its criticism of the Minister for taking into account the Guideline,[37] and giving the Guideline greater weight than the WDWAP, ALEC has not established that the Minister was not entitled to take into account the Guideline pursuant to s 90(1)(k) as a factor the Minister considered should be taken into account.
[60] There is a further matter I should mention in this context. As I have explained, the complaint of ALEC is that the Minister failed to comply with s 22B(4) of the Act by making a licence decision which did not accord with Part 8.2.1 of the WDWAP. It does not allege that the Minister did not take into account the WDWAP. Indeed, it could not do so in circumstances where the Guideline at section 3.1 set out the substance of Part 8.2.1 of the WDWAP in relation to limits to change in groundwater levels within the GDE protection area, as follows:

[124]

[61] For reasons explained at section 3.2, the Guideline adopted different criteria to those in Part 8.2.1 of the WDWAP, based on additional research, modelling based on satellite imagery, on-ground sampling, and modelling/mapping on a regional scale based on field investigations. The Guideline recognised that the purpose of the WDWAP was to provide for consumptive use of groundwater and, in that context, accepted that some impact on GDE's was unavoidable, albeit "within carefully managed levels". The Guideline at section 4 set out a determination made by the Department of Environment and Natural Resources "that 70% of the current extent of GDE's in the Western Davenport Water Control District should be protected from negative impact".[38] In relation to those GDEs to which the 70% threshold might apply, the Guideline proposed, in effect, that it should apply to the more ecologically valuable GDEs, listed as those that are "large in individual extent"; that are in good condition (having regard to the impacts such as grazing, fire, weeds); that provide habitat for threatened or rare species; that have relatively high species richness; that have relatively complex vegetation structure; that represent the range of environmental variation in ecosystems found in the region; and those that are "important in maintaining connectivity between habitat patches across the landscape" (I think this meant wildlife corridors). The Guideline stated that application of the suggested 70% threshold "should result in protection of a high proportion of groundwater dependent ecosystems having high densities of plants of Aboriginal cultural value".
[62] The Guideline at section 4.1 set out a differential approach to determining the potential for negative impact on groundwater dependent vegetation, depending on whether the vegetation was over 'shallow groundwater' (less than 10 m deep) or 'deeper groundwater' (10-15 m deep).
[63] For GDEs over shallow groundwater, the Guideline stated that there would be "potential for negative impact" if modelled extraction showed the possible occurrence ("may occur") of one or more of the following: (1) the maximum depth to water table exceeds 10 m below ground level; (2) the maximum depth to water table declines by more than 50% below the levels that would be expected under a natural baseline (no pumping) scenario; and (3) modelled extraction results in a rate of groundwater drawdown that exceeds 0.2 m/year.
[64] For GDEs over deeper groundwater, the Guideline stated that there would be "potential for negative impact" if modelled extraction showed the possible occurrence ("may occur") of one or more of the following: (1) the maximum depth to water table declines by more than 35% below the levels that would be expected under a natural baseline (no pumping) scenario; and (2) modelled extraction results in a rate of groundwater drawdown that exceeds 0.2 m/year.
[65] It can be seen that the Guideline provided an explanation or justification for its stated criteria for determining the potential for negative impact on groundwater dependent vegetation differing from the criteria in Part 8.2.1 of the WDWAP.
[66] The fact that the Minister ultimately decided that different criteria to those set out in Part 8.2.1 should be applied does not mean that she did not 'take into account' the WDWAP. Not only did the Minister take into account the Guideline (which itself set out and engaged with Part 8.2.1), but the Minister expressly dealt with the WDWAP, in particular Part 8.2.1, where she summarised the matters considered by the Controller, including the WDWAP and the Guideline, and noted that the Controller had taken into account the risk to GDEs being within thresholds outlined in the Guideline. The Minister also referred to Part 10.1 of the WDWAP for an explanation of the term 'adaptive management framework', the stated tools of which included licence conditions, policy, water allocation plans, monitoring programs, research and investigations, compliance programs and modelling. In that context, the Minister adopted the opinion of the Review Panel that the Controller's use of licence conditions (including several conditions precedent, to be satisfied before extraction of water under the licence were to proceed) was a reasonable measure to manage risk and uncertainty.[39] The Controller had observed that potential impacts to GDEs (and other water users) could be managed by licence conditions which (1) staged the release of water and (2) required implementation of a monitoring and adaptive management plan.[40] The Minister stated in her reasons that the licence contained a number of conditions precedent which had to be addressed prior to the extraction of water under the licence, which the Review Panel considered appropriate to manage risk and uncertainty.
[67] The proposition that Part 8.2.1 of the WDWAP had some binding regulatory force, or even some derivative statutory force via s 22B(4), as ALEC contends, becomes even more improbable when regard is had to the language used. It is apparent that the language of the WDWAP is in the nature of guidance, instruction and recommendation. For example, in Part 8.2.1, relied on by ALEC, the word 'should' is used: "Proposed extraction should not result in a change to groundwater conditions ..." and "Assessment of compliance with these criteria should be based on groundwater modelling". The use of the word 'should', rather than 'must', denotes a non-regulatory standard which is clearly not mandatory.[41] That conclusion is confirmed by the following extract from Part 1.1.2 of the WDWAP, dealing with 'Groundwater resources' (underline emphasis added):

[135]

[74] The content of the conditions precedent is set out in [75] to [80] below.
[75] Condition CP 5(a)(ii) of the Licence required that Fortune prepare for approval by the Controller a map (and spatial data), verified through suitable on-ground surveys, of the groundwater dependent ecosystems in each landform on Singleton Station in the aeolian sandplain and alluvial plain areas shown in an attachment to the licence.
[76] Condition CP 5(b) of the Licence required Fortune to prepare for approval by the Controller maps (and shape files) demonstrating the modelled spatial extent of predicted impact on groundwater levels.
[77] Condition CP 5(c) of the Licence required Fortune, in the event that the extent of predicted impact mapped in accordance with condition CP 5(b) exceeded, relevantly, the limits outlined in the Guideline, to prepare for approval by the Controller a revised version of the bore field design set out in an attachment to the Licence, and a model pumping file (pumping schedule) for the revised bore field design, together with maps (and shape files) based on the revised bore field design demonstrating the modelled spatial extent of predicted impact to, relevantly, the groundwater dependent ecosystems mapped in CP 5(a) at 5 yearly intervals for a minimum of 40 years to meet the protection limits outlined in the Guideline.
[78] Condition CP 6 required Fortune to undertake an assessment of the potential salinity impacts to the land and water resource from water taken and used under the Licence and to submit a report to the Controller. One of the matters required to be included in the assessment and report was the management of salinity impacts in order to maintain groundwater quality and to prevent or minimise adverse effects on the potential use of any other land.
[79] Condition CP 7 required Fortune to develop and submit for approval by the Controller an adaptive management plan which had to include "clear and measurable objectives" which, inter alia, would achieve or reduce the predicted impact on groundwater levels determined under condition CP 5, and which would also protect 70% or more of the groundwater dependent ecosystems in each of the two major landform classes.[44] Fortune was required to prepare the adaptive management plan in consultation with the Department. Condition CP 7 was very detailed in terms of the matters to be dealt with in the proposed adaptive management plan, and required that the plan include "quantitative triggers and limits which can be used to initiate adaptive management actions" when, for example, groundwater level response to water taken under the Licence deviated from the predictions mapped in accordance with condition CP 5 and/or if impact on the health of groundwater dependent ecosystems was measured or predicted to exceed 30% of the extent of groundwater dependent ecosystems in each of the two major landform classes as determined under CP 5.[45]
[80] Condition CP 8 required Fortune to develop and submit for approval by the Controller a monitoring program to assess the impact of water taken under the Licence on groundwater levels, on the health of groundwater dependent ecosystems mapped in accordance with CP 5, and on other uses of the water resource. The requirements for the monitoring program were set out in detail.
[81] As mentioned in [27] above, the Minister imposed conditions CP 9 and CP 10 which were additional to those imposed by the Controller. The inclusion of both conditions was as a result of the report of the Review Panel, as the Minister explained in her reasons:[46]

[138]

[82] Condition CP 9 required Fortune to develop and submit for approval by the Controller a program to assess the water resource under which, amongst other things, aquifers were required to be identified, the interconnectivity between aquifers determined, and aquifer yields quantified by pumping tests of at least 48 hours of constant discharge with a recovery period of 24 hours or 95% recovery to initial groundwater levels. The program was required to be implemented following the Controller's approval.
[83] Condition CP 10 required Fortune to develop and submit to the Controller "a groundwater dependent Aboriginal cultural values impact assessment" prepared by a suitably qualified professional, which had to identify, map and document the cultural values of Aboriginal people which would be impacted by groundwater extraction under the Licence and to identify reference points to be used in modelling such impacts and specify monitoring parameters, trigger values and limits for the reference points which could be used to initiate actions under an adaptive management framework.
[84] I made brief reference in [66] above to the manner in which the Minister took into account the WDWAP, the Guideline, the Controller's reasons and the report of the Review Panel. Having considered the detail of the conditions precedent, and having analysed the Minister's reasoning, I am satisfied that consideration was given to the specific issues of environmental impact and Aboriginal cultural values, as explained in [85] to [90] below.
[85] In relation to condition precedent CP 5, the Controller had considered the predicted impacts of groundwater extraction on GDEs based on a modelled distribution of GDE's in the District at the regional and property levels, and was satisfied that the total negative impact remained below the 30% threshold in the Guideline. The Review Panel report stated that information provided to the Panel demonstrated that the Guideline thresholds were based on detailed scientific investigations and assessments carried out since the WDWAP had been declared, and considered that it was appropriate for the Controller to take the Guideline into account under s 90(1)(k) of the Act.[47] The Minister adopted that approach. There was no failure to consider the impact on GDEs.
[86] In relation to condition precedent CP 6, the Controller had addressed the salinity impacts of the proposed extraction and use of water under the Licence. She identified a reduced risk of salinity problems because, in the sandy and highly permeable sandplain soils on which the proposed extraction activity would take place, salts would flush beyond the root zone.[48] The Controller nonetheless acknowledged that there was uncertainty as to the effect on the underlying groundwater resource, and imposed specific conditions under the licence to examine and address any adverse impacts from salinity. The Review Panel made a specific recommendation that there be a detailed assessment and investigation of salinity risks prior to extraction of groundwater, as outlined in the Controller's decision. Condition precedent CP 6 adopted that recommendation.
[87] In relation to condition precedent CP 7, the Controller had considered that the scientific understanding of the water resource and predicted impacts of the proposed groundwater extraction were moderately well-established. However, as the Controller acknowledged, the modelled data relied on could be influenced by assumptions and predictions and she therefore determined that the models and predictions should be tested as extraction went ahead. In considering the use of an adaptive management framework to manage uncertainty and risk, the Review Panel accepted that the Controller's approach was reasonable,[49] and the Minister adopted this approach.[50]
[88] In relation to condition precedent CP 8, the Controller had considered that the potential for any adverse impact of groundwater extraction, or departure from modelled predictions, could be monitored and addressed by conditions requiring Fortune to report on its water usage; monitoring the effects on groundwater levels and the potential effect on other users, following which "any adverse effect could be addressed through the implementation of an adaptive management plan".[51] In this respect also, the Review Panel accepted that the Controller's approach was reasonable, and the Minister adopted that approach by the very detailed CP 7 summarised in [79] above.
[89] In relation to condition precedent CP 9, the Controller had determined to grant the licence having assessed the water resources in the District, including the availability of groundwater, the impacts of groundwater extraction and the effect of groundwater extraction under the proposed licence on the supply of water to other users.[52] The Review Panel then suggested that, prior to the extraction of water, a detailed assessment be undertaken of the water resource on Singleton Station, to include hydrogeological investigations at a local level to verify the modelled outputs and reduce model uncertainty.[53] The Minister accepted the recommended approach, and CP 9 was the result.
[90] In relation to condition precedent CP 10, I referred in [81] above to the Minister's reasons for imposing conditions precedent CP 9 and CP 10, which were both additional to those imposed by the Controller. The need to model groundwater dependent ecosystems was relevant to Aboriginal cultural values because, under the WDWAP, such values were associated with those ecosystems. The Review Panel considered that the Controller had not properly taken into account the cultural significance of GDEs which might be impacted by the extraction of water under the Licence, and suggested that a comprehensive cultural values impact assessment be undertaken prior to the extraction of significant volumes of water under the licence.[54] The Minister adopted this suggestion, for reasons given by her.[55]
[91] Counsel for ALEC contend that the nature of the conditions precedent was such that matters which were essential to the proposal's capacity to comply with the key terms of the WDWAP and the mandatory relevant considerations in s 90(1) of the Act were deferred for later consideration. Such deferred matters included the mapping of groundwater dependent ecosystems; modelling to substantiate the spatial extent of impacts on groundwater levels; the actual bore field design; salinity impacts and material to substantiate compliance with the Guideline were deferred. Additional conditions precedent CP 9 and CP 10 were said to exacerbate the problem. All of these matters were said to deprive the Decision of finality, rendering it invalid.
[92] Counsel for ALEC refer to "a long line of authorities decided under various Australian planning and environment laws which recognise the proposition that in instances where a statute confers power to grant a consent or licence subject to conditions, if the purported consent leaves for later decision an important aspect of the development which would alter the proposed development in a significant or fundamental respect, then it may be invalid".[56] On that basis, ALEC contends that an authorisation to extract water may not utilize licence conditions to allow for subsequent variation, refinement or adaptation of matters which are said to be "significant" or "fundamental".
[93] The problem with ALEC's contention is that the town planning cases are not truly analogous to the present case, notwithstanding superficial similarities. As Spiegelman CJ observed in Winn v Director-General of National Parks and Wildlife, the so called 'principle of finality' is peculiarly applicable to the construction of planning statutes.[57] It is concerned with the possibility that an ultimate development may be "significantly different from the development for which the application was made",[58] or that a delegated decision could "alter the proposed development in a fundamental respect".[59]
[94] I accept the submission of counsel for the Minister that the stated principles cannot be applied to the Water Act 1992 with the generality contended for by ALEC. Authorisations concerned with the ongoing extraction of a resource such as water are not properly comparable with planning authorisations under statutes intended to achieve very different objectives.

[140]

[96] Groundwater is a valuable resource for human consumption, and for commercial use in agriculture, horticulture and the pastoral industry. The Water Act 1992 is concerned with all aspects of the use of water, including the commercial use of water, which includes groundwater. One of the principles stated by the Minister, extracted in [53] above, was "providing security for enterprise development, with longer term water licences for business investment and planning". The extended term of water licences, made possible by the amending legislation in 2000, was to "give water users greater surety to raise finance and make investment decisions". The amendment to the Water Act 1992 to allow free market trading in water licences was for the stated purpose of "optimising economic benefit" and to ensure that water was used "to best economic advantage".
[97] However, the inherent character of groundwater is that it is a resource which can be depleted and, hypothetically, exhausted. Hence, another of the principles explained by the then Minister, extracted in [53] above, was that water allocation should always be limited to sustainable yield and should incorporate "safety margins where there is uncertainty". Similarly, the Minister referred to the principle of ensuring environmental integrity, with "water always allocated for water dependent ecosystems".
[98] Groundwater systems are not only affected by human activity, but also by natural processes. Aquifers may be stressed by groundwater extraction, but they may be recharged by rainfall infiltration. Rainfall from year to year is variable. Modelling of a hydrogeological system may provide information on how a particular water extraction project is expected to impact on the affected groundwater and on groundwater dependent ecosystems. However, the capacity of a model to capture real-world complexity is limited, particularly where historical data is limited or lacking. This means that outputs of models may be uncertain. Logically, a greater level of certainty may only be possible with the benefit of observations and measurements of groundwater behaviour after extraction (or some measure of extraction) has actually been carried out. On my understanding, this is the reason for the extensive conditions precedent imposed by the Minister.
[99] Under the Licence conditions, Fortune is to bear the risk and expense of complying with and/or satisfying those conditions precedent. Even then, under the staging conditions, Fortune will be at risk, for many years, of not being permitted to proceed to a subsequent stage of its horticulture project. I refer to [71] and [72] above in relation to the staging conditions. Based on information provided in a ministerial briefing to the Minister for Environment dated 20 January 2021, the Singleton Horticulture Project would require a total capital cost in excess of $150 million, with annual operational costs at maturity estimated to be approximately $110 million. Although Fortune estimated losses in the early years of development, it predicted that the project would become profitable from Year 7 and ultimately generate a profit of $40 million annually from Year 13 onwards.[61]
[100] If things do not pan out for Fortune, in terms of satisfying the conditions precedent, then it may not be permitted to commence or continue the extractive activities contemplated by the Licence. If Fortune were unable to satisfy any one of the staging conditions, then it would not be able to proceed to the next stage and would not be entitled to extract the greater volume of groundwater permitted for that next stage. As a result, Fortune might ultimately extract much less water than the volumes applied for and permitted under the Licence (subject to conditions). However, I do not consider that such an outcome would 'fundamentally alter' the nature of the application. Moreover, the postulated alteration would be in accordance with the stated objects of the Water Act 1992, which include the protection, management and administration of water resources. The fact that the conditions of the Licence may result in the extraction of reduced volumes of water, consistent with the scheme of the Water Act 1992, demonstrates that the principle of finality is not appropriately applied to determinations under s 60 Water Act 1992, or at least not to the Minister's decision in this matter.
[101] Given the matters discussed in [95] - [99] and the lengthy term of the Licence granted to Fortune, it would make sense that there be flexible regulation in the monitoring and control of groundwater extraction, including mechanisms to adapt extractive activities during the period of operation of the licence to respond to more specific information obtained after the grant of the licence. A licence to take groundwater may logically need to be conditioned to take into account future activity under the licence, changed conditions, new circumstances or unforeseen events. In this context, I accept the submission of counsel for the Minister that there is no reason why, on the grant of a licence, there could not be a requirement for a licence holder to undertake surveys, mapping, modelling or other measures to validate the assessment made at or prior to the grant of the licence. The requirement could be that the activity occur before the authorised extraction commences, or that the activity be ongoing throughout the term of the licence. The extraction may then require reduction or some other adjustment in the event that the activities taken to validate the assessment differ from the expectations at the time of the grant of the licence.[62]
[102] It is unlikely that the full implications of the proposed extraction under Fortune's licence could have been determined in advance. However, the conditions precedent and the staging conditions referred to and summarised above were imposed by the Minister to provide measures to protect the water resource and to take into account the matters required to be taken into account under s 90(1) of the Act. Whether those measures were sufficient or adequate would involve an impermissible consideration of the merits, which is not the function of this Court on an application for judicial review.
[103] ALEC's objections to the utilisation of conditions precedent by the Minister are based on the underlying proposition that all matters the subject of the conditions precedent must be identified, investigated and fully understood prior to the grant of the licence. The contention is that nothing of any significance should remain outstanding; that every question should be answered, and that there should be no remaining doubts or uncertainties. However, as mentioned in [95] above, a determination as to whether any and, if so, which conditions must be fixed at the time of the grant of the licence is necessarily one of statutory construction.[63] In this context, nothing in the Water Act 1992 appears to support the proposition advanced by ALEC.
[104] Section 60 of the Act authorizes the grant of a licence to take groundwater "subject to such terms and conditions, if any, as are specified in the licence document". The Controller (and the Minister) are empowered to impose conditions generally. While the s 90(1) factors must be taken into account, there is no statutory requirement as to the degree of satisfaction the Controller (or Minister) must have in order to impose conditions. As to the nature of the conditions which may be imposed, the Act does not exclude the imposition of conditions precedent to the extraction of water, or conditions which involve ongoing assessment of the effects of extraction of groundwater under a licence and the power of the Controller to flexibly respond to any adverse effects.
[105] Decisions such as Winn reflect the general law principle that the question as to whether a conditional approval or a condition attached to the approval of some activity is valid, is an exercise in statutory construction. They also reflect the general principle that the approval or a condition is not necessarily invalid because a condition retains in the decision-maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency.
[106] In the context of the Water Act 1992, the imposition of conditions precedent and staging conditions, under which matters of detail were left for later determination (by the Controller), and the delegation (to the Controller) to supervise Fortune's compliance with those conditions, introduced a level of practical flexibility which may be seen as logical in relation to the extraction of groundwater, in accordance with the statutory scheme. There was no impermissible deferral of mandatory relevant considerations.
[107] Pursuant to s 60(2) Water Act 1992, a licence to take groundwater may be granted "subject to such terms and conditions ... as are specified in the licence document". That power is wide enough to encompass the imposition of conditions precedent before extraction entitlements come into effect. Indeed, such conditions precedent are one of the adaptive management tools referred to in the WDWAP.
[108] ALEC has not established a failure on the part of the Minister to determine a grant of a licence. In my judgment, ALEC's second ground of review must fail.

[176]

[133] Although the legislation considered in Carrascalao did not expressly provide for personal consideration of a specified report or particular documents, unlike the legislation considered in Tickner, the Court in Carrascalao observed that the statutory framework, particularly the displacement of the requirements of natural justice and the limited scope of the representations which an affected person might make in seeking to have the Minister revoke a visa cancellation decision, highlighted the need for the Minister to exercise the important power under s 501(3) of the Act with appropriate care and attention, including by engaging in an active intellectual process and reviewing relevant material placed before him to assist in the discharge of the significant statutory function.[103]
[134] The Court in Carrascalao upheld the appeal on the ground that the Minister failed to give proper, genuine and realistic consideration to the merits of the two visa cancellation decisions. The volume of material relating to Mr Carrascalao was approximately 370 pages and that of the other affected applicant approximately 330 pages. The earliest time at which the Minister could have actually seen the Carrascalao material was 7:42 pm on the day and in the case of the other applicant, approximately 7:48 pm the same day. The Minister cancelled the other applicant's visa at 8:18 pm and Mr Carrascalao's visa at 8:25 pm. A significant issue adverted to by the Court was that there was no evidence as to how the Minister actually divided his time in respect of his consideration of the two matters.[104] After referring to a period of 43 minutes taken by the Minister to review the materials in both cases, the Court reached the conclusion that there was insufficient time for the Minister to engage in the requisite active intellectual process.[105]
[135] MAC's contentions proceed from the starting point that the review power in s 30 of the Water Act 1992 is reposed in the Minister personally. Pursuant to s 30(3)(a)(ii), the Minister may substitute for the Controller's decision a decision which in the opinion of the Minister the Controller should have made in the first instance. Where the matter has been referred to the Review Panel pursuant to s 30(3)(b), the Minister is required to take such action after receiving the Review Panel's advice as the Minister thinks fit. MAC submits that the Minister is required to participate personally in a process that may lead to a decision which would have significant impacts on a precious and particularly scarce finite resource, in circumstances where there are numerous competing potential users of that resource. I am not sure whether groundwater is correctly characterized as a "finite resource", except hypothetically, as explained in [97] and [98] above. Although the submission may otherwise be accepted, it is not particularly helpful because the meaning and extent of the requirement to 'personally participate' is left open to interpretation.
[136] Counsel for MAC rely on the decision of Hiley J in Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management,[106] for the proposition, inter alia, that the Minister was obliged to consider for herself whether the decision of the Controller was wrong and what was the 'true and correct' or 'preferable and correct' decision.[107] I do not agree that the Minister was obliged to consider that the decision of the Controller was wrong before substituting a decision, as counsel for MAC appear to submit. In general terms, it must be open to the Minister to decide that the Controller's decision could be improved upon or added to so as to justify the Minister substituting a decision that, in the Minister's opinion, the Controller should have made in the first instance.
[137] My opinion expressed in the previous paragraph is consistent with what was said by Hiley J at [127] of the Environment Centre judgment:

[178]

[138] Counsel for MAC submit that the exercise of her powers under s 30 Water Act 1992 required the Minister to engage in an active intellectual process in determining the matter. They submit that the Minister was under a legal obligation to consider the merits of the licence application, including the application of the relevant factors under s 90(1) of the Act. This was said to require meaningful consideration of those factors, in the sense of being proper, genuine and realistic.[108] They further submit that the Minister must "read, identify, understand and evaluate" the application and representations made and "bring [her] mind to bear upon the facts stated ... and the arguments or opinions put forward, and appreciate who is making them".[109] It may be noted that the passage last quoted was taken from the statement of Kiefel J in Tickner v Chapman, extracted in [130] above, made in the context of legislation which required personal consideration by the Minister (as the decision-maker) of the report and representations attached to the report.
[139] MAC also contends that the level of engagement by the Minister had to occur 'within the bounds of rationality and reasonableness'. That submission is taken from Plaintiff M1/2021 v Minister for Home Affairs.[110] The context was the Minister's statutory obligation under s 501(3A) of the Migration Act 1958 to cancel a person's visa if satisfied the person had been sentenced to a term of imprisonment of 12 months or more and that the person was serving a sentence of imprisonment on a full-time basis in a custodial institution. Where a person's visa was cancelled under that provision, s 501CA of the Act allowed for possible revocation of the cancellation decision if the Minister or delegated decision-maker were satisfied that the person passed the character test or that there was another reason why the original decision should be revoked. The process pursuant to s 501CA commenced with the affected person making representations. In that statutory context, the majority held that the decision maker must read, identify, understand and evaluate those representations.[111] Their Honours referred to the observation of Kiefel J in Tickner v Chapman, referred to in [130] above, in the following passage:[112]

[183]

[141] In relation to the chronology set out by me at [21] - [24] above, MAC submits that the Minister was not briefed with the first tranche of material in respect of the review until 1:00pm on Friday, 12 November 2021 at the earliest. Receipt of that material was confirmed in the morning of Saturday 13 November 2021. The two briefings provided to the Minister totalled over 1,660 pages, and they included voluminous reports, including reports of a detailed technical nature. The Minister did not have particular expertise or qualifications in relation to environmental management, water regulation or hydrology. The Minister made her decision at about 4:30pm on Monday 15 November 2021, which was less than one business day after she was provided with the briefing materials.[114]
[142] MAC submits that the Minister's reasons state that she had "reviewed and considered" the 1,600 plus pages of material briefed to her.[115] That submission may not be correct. The Minister did not assert that she had reviewed and considered a specific number of pages of material; she stated that she had reviewed and considered the documents in the categories (a) - (f) at page 4 of her reasons for decision.[116] Further, the submission may not be particularly relevant, unless as a matter of law the Minister was bound to consider all the materials briefed to her. In my opinion, she was not. The Water Act 1992 did not require the Minister to engage in such an extensive merits review de novo. I say more about that in [161] below.
[143] Counsel for MAC points out that, in the stated categories of documents which the Minister said she had reviewed and considered, the Minister did not expressly mention the two ministerial briefings prepared for her by the Department. Because the Minister stated in her reasons, "I have not considered any other information as part of the review", Counsel for MAC submits that there is no evidence before the Court that the Minister had read those briefings.[117] That submission provides a good example as to why a court should not scrutinise a decision-maker's reasons in an overzealous manner.[118] The Minister's reasons in the respect identified appear to be wrong, because I note that the Minister's signature appears at the end of both ministerial briefing documents, confirming her consideration of the contents of both and, in one, a determination accepting one of several options presented to her.[119] I do not see any significance in the Minister not mentioning having read the ministerial briefings when in all probability she had done so.[120]

[187]

[147] In order to determine whether the Minister did or did not engage in the requisite intellectual process, it is important to consider the nature of the review process under s 30 Water Act 1992 and the Minister's statutory powers in relation thereto. The section was the subject of detailed consideration by Hiley J in the Environment Centre judgment referred to in [136] and [137] above,[125] in which a number of matters relevant to the present case were decided. I refer to those in [148] - [152] below.
[148] His Honour held that the review was a 'merits review' and that the Minister's powers of review were not limited to the correction of error.[126]
[149] The defendant in the Environment Centre case had made a submission to the effect that, if the review were not for the purpose of correction of error, then the Minister would be required to re-exercise all the functions of the Controller afresh, simply because a person aggrieved had made an application for review. Hiley J rejected that submission, agreeing with the plaintiff's contention that it was for the Minister to decide how far he or she needed to 're-exercise' the Controller's functions in order to decide what was the true and correct decision.[127]
[150] Hiley J observed that the extent to which the Minister was obliged to consider the Controller's decision or action, and any other materials whether or not they were before the Controller, will vary from case to case.[128] A review on the merits would not necessarily require an extensive process such as consideration of all the materials de novo.[129] The Minister might be required to engage in a more extensive merits review if he or she decided to substitute his or her own decision for that of the Controller pursuant to s 30(1)(a)(ii) of the Act, but not necessarily so.[130]
[151] Hiley J also referred to the possibility that the Minister might consider that he or she needs to consider additional information before making a decision. His Honour referred specifically to examining some of the materials or comments that had been provided to the Controller under s 71B(4);[131] or used by the Controller for the purposes of s 90(1); examining additional materials or comments provided by the applicant for review, or seeking assistance from the Review Panel.[132] His Honour concluded that particular consideration as follows:[133]

[189]

[152] Of some significance for MAC's application, Hiley J accepted the proposition that the Minister is entitled to receive assistance from others, most obviously from others in his or her Department, and from the materials before the Controller, in discharging a review function.[134]
[153] In my opinion, the decisions in Tickner v Chapman and Carrascalao v Minister for Immigration and Border Protection do not determine the outcome in the present case.
[154] I accept the validity of the statements in Carrascalao as to the requirement for the decision-maker to engage in an active intellectual process and to give proper, genuine and reasonable consideration to the merits of the matter. The paucity of time taken by the Minister in that case was extraordinary. On my analysis of the decision, the Full Court was satisfied on the facts that there was insufficient time for the Minister to engage in the requisite active intellectual process. I am not so satisfied in the present case. I bear in mind that, in Carrascalao, the Minister was the primary decision-maker. In the present case, the Minister was charged with carrying out a review of the Controller's decision, after receiving the advice of the Review Panel. It was for the Minister to herself determine how far she needed to re-exercise the Controller's functions.
[155] In Tickner, an express statutory obligation was imposed upon the Minister to consider personally a report and any representations attached to it bearing upon the possible making of the s 10(1) declaration. There is no analogous requirement in the Water Act 1992 that the Minister personally consider any particular reports, submissions or other documents of the kind specified in Tickner. I referred in [44] above to the matters required to be taken into account. I explained that it is implied by s 30(3)(b) and s 30(4) of the Act that the Minister will take into account the advice given by the Review Panel before taking action under s 30(3)(a)(i) or (ii). It is implied because it would be a pointless exercise for the Minister to refer the matter to the Review Panel with a request for advice and then not consider the advice. That is the case whether or not the Minister accepts or rejects such advice, in whole or in part. There is no evidence in this proceeding that the Minister did not take the advice of the Review Panel into account. On the contrary, the Minister's reasons refer in detail to the report of the Review Panel.[135]
[156] It is also implied, for the reasons given in [44], that the Minister must take into account comments made in accordance with s 71B(4). The Minister refers in her reasons to having considered "the comments made under s 71E(4)".[136] I consider that that is either a typographical error or a minor mistake in the drafting of the reasons, because the Minister referred at length to the multiple concerns of the 'Reviewing Persons', and explained in her reasons how those concerns had been taken into account, in compliance with the requirements of s 71E(4). MAC has not established that the Minister did not take into account the s 71B(4) comments. I would add that I do not consider that the requirement made it necessary for the Minister to personally read all such comments in circumstances where the Minister adopted the process under s 30(3)(b) of the Act to refer the matter to the Review Panel for advice. The Review Panel considered not only the comments but also the grounds of review of the commenting parties who had become "aggrieved" persons under s 30(1) of the Act. In brief, the comments and grievances were 'filtered' through the process of the review undertaken by the Review Panel. That review included receiving written submissions and hearing oral submissions from the representatives of the applicants for review.[137] The position is thus different to that described by Kiefel J in Tickner, where a "mere summary" of representations provided to the Minister was held not to suffice in circumstances where the statute required that the Minister read the representations himself.
[157] The clear implication of s 30(4) read with s 30(3)(a)(ii) of the Water Act 1992 is that, before substituting a fresh decision for that made by the Controller, the Minister must be of the opinion that the decision the Minister wishes to substitute is an improvement on the Controller's decision.
[158] I accept the submission of counsel for Fortune that, in carrying out the review of the Controller's decision, after receiving the advice of the Review Panel, the Minister was not required to, and could not reasonably be expected to read for herself all the papers that relate to the matter.[138] Despite the personal nature of the power, the Minister was entitled to obtain assistance from departmental officers. The proper role of the relevant Department was explained by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd as follows:[139]

[191]

[159] The principle was recognised in Carrascalao at [61] where it was said that the Minister was entitled to obtain assistance from departmental officers and members of his private staff, including to have them prepare summaries of information for review by him. The stated qualifications to that proposition (ie, materially deficient summary; inadequate summary of substantive argument; express requirement for Minister to personally consider relevant information) were on the basis that the applicable legislation, under which natural justice did not apply, required that the Minister personally exercise the power to cancel a visa if the Minister reasonably suspected that the person did not pass the character test and the Minister was satisfied that the cancellation was in the national interest.[140]
[160] In the present case, I consider that in conducting the review the Minister was entitled to allow the documents relevant to the issues she had to consider to be filtered by the Controller's decision,[141] the Review Panel's report, [142] and the ministerial briefing documents referred to above. When the Minister's reasons are read as a whole, it is clear that the Minister relied, as she was entitled to do, on the Controller's decision and, perhaps more so, on the Review Panel's report.[143] It was appropriate for the Minister to place significant weight on the advice in that report. The situation is analogous to reliance by the Minister for Aboriginal Affairs on the report of the Aboriginal Land Commissioner, where the Minister "in many if not in most cases ... will not need to go beyond the report of the Commissioner", in making a grant of land pursuant to s 11 Aboriginal Land Rights (Northern Territory) Act 1976.[144]
[161] MAC's case that the Minister failed to engage in the "requisite intellectual process" is based on a conclusion that the Minister was unable to read more than 1600 pages of documents in the course of a day or two. In submissions in reply, counsel for MAC appear to accept that the Minister reviewed the material, but again complain that she could not have undertaken the requisite intellectual process.[145] In my opinion, those submissions misconceive the Minister's review function. Moreover, the submissions overlook the very detailed reasons provided by the Minister, which engage with numerous issues, including Fortune's application and its implications, the matters to be taken into account under s 90(1) of the Act, the comments made by commenting or aggrieved parties under s 71B(4) of the Act, the Controller's decision, the advice received from the Review Panel, and departmental advice in the ministerial briefing documents, all of which provide evidence of engagement in an active intellectual process. In my assessment, the Minister's written response to the ministerial briefing documents, endorsed on those documents, and then the Minister's detailed reasons themselves, signed by her, provide clear evidence of active intellectual engagement with the subject matter of the review.
[162] In my judgment, MAC has failed to establish that the Minister failed to give proper, reasonable and rational consideration to relevant considerations under s 90(1) Water Act 1982.
[163] Grounds 1 and 2 are not made out.

[192]

[164] By these grounds, MAC contends that the Minister failed to observe certain limits in her review, in respect of each of the following categories of conditions precedent: conditions about an adaptive management plan and monitoring program (CP 7 and CP 8); conditions about assessing the water resource (CP 9); and conditions about Aboriginal cultural values (CP 5 and CP 10).
[165] In MAC's contention, the power to impose conditions was limited by a number of matters:[146] (1) the conditions must be related to the purpose for which the function of the Minister is being exercised;[147] (2) a purported decision to grant a licence will not be a decision if a condition imposed has the effect of significantly altering the proposal in respect of which the application was made; (3) a purported decision to grant a licence will not be a decision if the fulfilment of the condition would significantly alter the proposal in respect of which the application was made;[148] (4) a purported condition to grant a licence will not be a decision if the effect of an imposed condition is to leave open the possibility that the proposal, as carried out in accordance with the decision and the condition, will be significantly different from the proposal that was originally made; and (5) where the criteria for future assessment are imprecise or unspecified, there may be an effective but impermissible delegation of authority.
[166] The first limitation may be accepted. However, MAC has not established that the conditions imposed by the Minister were not related to the purpose for which the Minister's function was exercised.
[167] The second, third and fourth submitted limitations are all directed at the possibility of a significant alteration to the proposal, that is, the proposal as carried out will be significantly different from the proposal originally made. However, MAC has not sought to rely upon any comparison between the application to take groundwater made by Fortune on 31 July 2020,[149] and the staged entitlement set out in the Table in [71] above. MAC has not identified the significant difference suggested by its submissions.[150] The only way in which I can see that the proposal, as carried out, will be different to that applied for is as referred to by me in [100], namely that Fortune would be unable to satisfy the staging conditions and, on that basis, not permitted to proceed to the next stage. There is also the possibility that Fortune would be unable to satisfy all the conditions precedent. As I observed in [100], and for the reasons given, I do not consider that a possible outcome, in which Fortune extracts lower volumes of water than those applied for and permitted under the Licence (subject to conditions), would be such as to adversely affect the validity of the Minister's decision. Moreover, to the extent it is relevant, I would have thought that an outcome in which Fortune extracts lower volumes of water than applied for is one which MAC would regard favourably.
[168] MAC's submissions otherwise are that the imposition of conditions precedent was inappropriate where there had not been a sufficient assessment of the water resource throughout the District to support the Department's groundwater model, and where risks and uncertainties had not been defined or identified sufficiently to permit the volumes of water sought by Fortune. As a result, the Minister's decision was "[not] attended with sufficient certainty beyond stage 1", essentially because of reservations expressed by the Review Panel. In MAC's submission, the Minister was not able to consider the matters relevant to the decision required by s 90(1)(ab), (b), (c), (e), (g), (h) and (k) of the Act.[151]
[169] I do not accept the submission that the Minister did not make a decision about water entitlements with sufficient certainty beyond the first stage. The general requirements of the staging conditions are explained in [72] above. In my opinion, the staging conditions are precise and certain. Any uncertainty is in relation to whether the staging conditions can be satisfied but, although that is a possible problem for Fortune, it does not invalidate the Minister's decision.
[170] The Minister either had the power to deal with Fortune's application by imposing conditions precedent, or she did not. For reasons explained in [91] - [108], I consider that the Minister had the power and that her utilisation of conditions precedent was lawful. That is not to deny that, after taking into account the matters which the Minister was required to take into account, she might not have refused the licence or deferred the decision to grant the licence and required that specified matters be further investigated, so that there would be no or fewer remaining doubts or uncertainties before granting the licence. However, that was not the way in which the Minister chose to proceed and, as I observed in [107], the power in s 60(2) Water Act 1992 is wide enough to encompass the imposition of conditions precedent before extraction entitlements come into effect. Any remaining arguments to the effect that the conditions precedent were inadequate, or that the Minister did not give sufficient weight to certain matters, are arguments in relation to the merits of the Minister's decision, not the lawfulness of the decision.
[171] The fifth submitted limitation was that there may have been an impermissible delegation of authority. The contention in full is as follows:[152]

[194]

[172] In my opinion, there was no impermissible delegation of authority. The Controller of Water Resources was a person appointed under s 18 Water Act 1992. The Controller had a statutory duty pursuant to s 34 of the Act to ensure as far as possible that a continuous program for the assessment of water resources within the Northern Territory was carried out, including the investigation, collection, collation and analysis of data in relation to, amongst other things, the use of water resources. The Controller also had an independent statutory power to amend or modify the terms and conditions of any licence pursuant to s 93(1) of the Act. The power could not be exercised in a way that would result in an increase in the total quantity of water permitted to be taken under a licence. Further, if the Controller were satisfied that a licence holder had contravened or failed to comply with a term or condition of a licence, the Controller could revoke or suspend the licence.[153] In making any such decision, the Controller was required to have regard to the s 90(1) factors, discussed at length in these reasons. If it is accepted that the Minister's utilisation of conditions precedent (and staging conditions) was legitimate, it was appropriate and arguably desirable for the Controller to be nominated as the relevant officer to receive, consider and approve (as the case may be) the reports, maps, plans, programs and assessments required by the Minister's reasons, to ensure that the conditions precedent and staging conditions were satisfied.
[173] The final matter referred to in [164], in respect of which MAC contends the Minister failed to observe certain limits, was in relation to Aboriginal cultural values. As mentioned in [19], the Review Panel had recommended that a comprehensive cultural impact assessment be carried out prior to the extraction of any significant volumes of water on Singleton Station. No such assessment had been carried out prior to the grant of Fortune's licence. The Minister took the Panel's recommendation into account by adding condition CP 10, summarised in [83], for reasons extracted and discussed in [81] and [90] above. In this context, the map and spatial data derived from on-ground surveys, required by condition CP 5(a), was to include Aboriginal cultural values identified in the assessment required by condition CP 10.
[174] MAC contends that, because no assessment was done prior to the grant of the Licence, "there is a real possibility that the Licence proposal will be different from that for which the application was made". MAC refers to there being approximately 93 Aboriginal sacred sites within the drawdown area, approximately half of which have groundwater dependent values.[154] The implication of this contention is that some accommodation may be required within Fortune's proposal to take into account Aboriginal concerns in relation to sacred sites. I fail to see how this possibility gives rise to error in the Minister's decision.
[175] MAC further contends that the Minister failed to take into account a relevant consideration in making the Decision in that she did not have "a clear articulation of the relevant Aboriginal cultural values, nor how the grant of the Licence was expected to impact them"; further, that the consideration of how to protect those cultural values was impermissibly deferred to the Controller.[155]
[176] I do not accept MAC's further contention. There was no express statutory requirement for the Minister to have before her "a clear articulation of the relevant Aboriginal cultural values". I do not agree that such a requirement can be inferred from the subject matter, scope and purpose of the legislation, as MAC contends.[156] The fact that relevant Aboriginal cultural values may be taken into account pursuant to s 90(1)(k) Water Act 1992 does not elevate that discretionary consideration to a mandatory relevant consideration. In any event, it is clear that the Minister did consider the WDWAP and Aboriginal cultural values from the fact that the Minister added condition CP 10.
[177] In my judgment, the requirement for the preparation and submission to the Controller of a 'groundwater dependent Aboriginal cultural values impact assessment' did not constitute an impermissible deferral. Moreover, the requirement was consistent with the report of the Review Panel which had recommended the cultural impact assessment prior to the extraction of any significant volumes of water. MAC has not established that the condition precedent was other than a valid exercise of power under s 60(2) of the Act.
[178] Grounds 3, 4 and 5 are not made out.

[212]

[186] The reference to the submissions made by the Licence Holder was to Fortune's letter to the Department of Environment, Parks and Water Security dated 12 November 2021.[161] In that letter, Fortune explained that its business plan and financial model for the Singleton Horticulture Project was based on a four-stage development, with each stage of two years. One consequence of extending stage 1 from two years to five years would be the probable need to split the project into two separate development projects, which Fortune considered was less attractive to investors and financiers because of increased uncertainties. Fortune stated that the viability of any Stage 1 project would be "in serious question". Another consequence of extending Stage 1 beyond two years would be the need to review the proposed Stage 1 crop selection, with likely choice of lower value annual crops, which was contrary to the company's commitment to achieving maximum value for every megalitre of water utilised. Fortune's letter also stated that the company required scale to justify capital investment in infrastructure for processing, packing and cooling. If Fortune were limited to extracting the quantities of water recommended by the Review Panel for Stage 1, namely five years, the scale of the project would be reduced and, without suitable community infrastructure in place, it would be increasingly difficult to attract and retain quality key staff.
[187] My summary of Fortune's submission is not to endorse the validity of the statements made, but simply to explain the Minister's reference to the consequence of extending Stage 1 to five years on Fortune's ability to meet its proposed development schedule. I refer to s 90(1)(k) Water Act 1992. It must be inferred that the commercial and operational consequences of extending Stage 1 was a matter which the Minister considered should be taken into account. In my opinion, the Minister was entitled to take into account possible adverse consequences to the viability of the Singleton Horticulture Project, given the very significant proposed capital investment and the potential economic benefits to the Northern Territory economy and community if the project proved viable.
[188] As I concluded in [48] above, the Minister had a very wide discretionary power under s 90(1) of the Act. The Minister was entitled (and on the review, required) to take into account the staging of the licence granted by the Controller. The Minister noted the Controller's view that the two-year period specified for Stage 1 provided sufficient certainty in assessing impacts. The Minister had to balance the Controller's view against the advice given by the Review Panel. It is clear from s 24(1), s 30(3)(b) and s 30(4) of the Act that the role of the Review Panel was advisory. The opinion and recommendations of the Review Panel were not binding on the Minister. After receiving the advice, the Minister was required to take such action as the Minister thought fit. The Minister's decision demonstrates that she sought to balance hydrogeological risks - which she considered would be mitigated ("addressed") by extensive conditions precedent (including the 'new' condition precedent CP 9), comprehensive monitoring and a rigorous adaptive management plan - against the identified commercial risks to Fortune and the predicted financial disincentives to a very significant horticultural project. In my judgment, the Minister's reasons disclose a rational and intelligible basis for the water extraction licence decision.
[189] MAC's essential argument in relation to unreasonableness or irrationality is that the Minister did not give sufficient weight to the recommendation of the Review Panel extracted in [180] above, or that the Minister accepted the Panel's recommendation in part only. However, any argument about the period of time, greater than two years, required to assess aquifer behaviour and GDE impacts, is an argument about the merits of the Minister's decision. In this respect, I refer to my observations in [120] and [121] above, including that a court must be careful not to exceed its supervisory role by undertaking a merits review of an exercise of discretionary power. My comments in relation to ALEC's case at [122] apply also to MAC's case.
[190] Grounds 6 and 7 are not made out.

[228]

[208] Under the Water Act 1992, there is no doubt that the MAC was entitled to procedural fairness, to the extent that the Minister was required to take into account written comments made on its behalf in making the review decision. Those comments, made to the Controller in accordance with s 71B(4), and further representations and evidence on behalf of MAC, were the subject of detailed consideration by the Review Panel. The Review Panel was not obliged to conduct a hearing, but had the power to do a number of things in order to enable it to advise the Minister, including requiring a person to appear, produce documents, and give evidence on oath.[185] In the present case, a hearing took place in which the Review Panel heard representations from the parties, as explained in [197] above. The Review Panel then provided its advice to the Minister in the form of a report.
[209] As held in [160], the Minister was entitled to allow the documents relevant to the issues she had to consider to be filtered by the Controller's decision and the Review Panel's report. Under s 71E(4)(a) of the Act, the Minister's reasons for decision had to state or explain the way in which the Minister had taken into account the s 71B(4) comments. The Minister's reasons contain multiple references to the submissions made by the 'Reviewing Persons' in relation to the following: consideration of cultural values; the Guideline and its impacts on GDEs; hydrogeological conceptual and numerical modelling and scientific uncertainty; the use of adaptive management framework to manage uncertainty and risk; the period of Stage 1 of the Licence; and the overall Licence period. The references in the Minister's reasons were not only in relation to the written comments made by the 'Reviewing Persons' under s 71B(4) but to the additional matters submitted by them or on their behalf to Review Panel. The Minister stated that she accepted the conclusions of the Review Panel (for the reasons given by it) on each of the issues raised by the Reviewing Persons with the exception of the Review Panel's recommendation of an amendment to Stage 1 of the Licence.[186]
[210] The 'status' of comments made in accordance with s 71B(4) of the Act are to be ascertained by reference to s 71C(2) and s 71E(4)(a) of the Act, which required that they had to be taken into account and that the reasons had to demonstrate the way in which they were taken into account. The status of persons making comments derived from those requirements. That is the relevant statutory framework. I do not overlook the fact that some of the persons making comments became "persons aggrieved" who made application under s 30(1) of the Act for a review of the Controller's decision. As mentioned in [209], further evidence was called and representations were made on behalf of MAC (as one such "person aggrieved") to the Review Panel. However, there was no express statutory requirement for the Minister to take into account such further evidence and representations. I refer to s 71C(2) and s 71E(4)(a), which are limited in scope to the s 71B(4) comments. Nonetheless, whether required to do so or not, the Minister did take into account the further submissions of those parties identified by her as the 'Reviewing Persons', as explained in [209] above.
[211] The flaw in MAC's submission, extracted in [198] above, 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.
[212] By its complaint that the Minister received further submissions from Fortune, MAC contends in effect that it should have been treated in exactly the same way as Fortune. However, MAC was not the licence applicant. There is nothing in the Act and there is no principle of administrative law which required that, to accord procedural fairness to MAC, the Minister was required (1) to provide recurrent opportunities for MAC to be heard on each condition of the Licence, or proposed variation to the licence conditions; (2) to provide MAC with each and every document potentially relevant to the Licence decision or (3) to give MAC an opportunity to comment on correspondence between the Minister and Fortune.

[235]

[220] The relevant chronology is as follows. On 15 February 2021, the Minister for Environment provided her opinion as to special circumstances. On 8 April 2021, the Controller granted the water extraction licence to Fortune. In May 2021, MAC (and ALEC) sought a review by the Minister for Environment of the Controller's decision. In July 2021, the Minister for Environment referred the matter to the Review Panel. The legislative change came into effect on 29 September 2021. The Review Panel provided its report to the Minister on 15 October 2021. The Minister substituted the decision the subject of the applications for judicial review in this Court on 15 November 2021. It is clear that the law had changed by the time of the Minister's substituted decision.
[221] MAC contends that s 60(4), as amended, provides that a licence may be granted for a period exceeding 10 years in two specific circumstances. In the present case, (1) there had been no relevant Gazette notice by the Minister pursuant to s 60(4)(a) specifying any purpose or criteria justifying a licence period longer than 10 years, and (2) the Controller did not consider whether special circumstances justified a longer period and so was unable to be satisfied under s 60(4)(b). Because neither circumstance was met, MAC submits that the Minister erred in law in granting the licence for a 30 year period.
[222] At the time the Controller made the decision to grant the water extraction licence to Fortune on 8 April 2021, she was not required to consider special circumstances; she was entitled to rely on the opinion of the Minister that there were special circumstances.[189] The Minister for Environment had provided her opinion, by endorsement on a ministerial briefing document on 15 February 2021, that there were special circumstances justifying the grant of a water extraction licence for 30 years.[190] Those special circumstances were the scale of Fortune's proposed horticulture project, the level of investment in the project, the time required to develop the project and potential economic benefits for the Northern Territory.[191]
[223] I came to a preliminary view that focus only on the text of s 60(4) prior to and following the legislative change was a possible distraction from a necessary consideration of s 30(3)(a)(ii) Water Act 1992, specifically the words "the decision that ... the Controller should have made in the first instance". As the High Court has so often emphasised, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions; reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute.[192]
[224] I considered that s 30(3)(a)(ii) could be interpreted such that the decision that the Controller "should have made in the first instance" meant a decision under the law as it stood at the time of the Controller's decision. However, because my concern had not been raised with the parties at the time of the hearing, I sought submissions as to the proper interpretation of sub-paragraph (3)(a)(ii). I am grateful to counsel for their prompt and comprehensive responses at short notice.
[225] In their supplementary submissions, MAC contends that the Minister was obliged to apply the law as it stood at the time of her (review) decision. I set out the summary submission in full below:[193]

[242]

[231] The statement of Hiley J extracted in the previous paragraph supports the proposition that the Minister is able to take into account information, or 'facts, matters and circumstances' known or identified at the time of the review decision, whether or not they were available to the Controller. In my opinion, that is clearly correct.[200] There is no statutory limitation confining the Minister to a consideration of the circumstances as they existed at the time of the Controller's decision or which precluded the Minister taking into account evidence provided or representations made after the Controller's decision. Moreover, the scheme of the Act is that factual matters arising subsequent to the Controller's decision (for example, in this case, the evidence and representations made by MAC to the Review Panel, or the report of the Review Panel, or Fortune's subsequent submissions) may be taken into account by the Minister on a review. Indeed, the Act requires the Minister to consider the advice of the Review Panel and take such action as the Minister thinks fit. It is clear that s 30(3)(a)(ii) does not limit the facts to be considered on a review.
[232] However, that does not resolve the question in the present case as to the law which applies when the Minister, having appropriately taken into account factual matters arising subsequent to the Controller's decision, decides to substitute the decision which, in the opinion of the Minister, the Controller should have made in the first instance.
[233] In their supplementary written submissions, counsel for the Minister state that, despite the formula used in s 30(3)(a)(ii) being relatively common in statutes conferring power on a reviewing decision-maker, the Minister is not aware of any authority that answers the specific question. Counsel submits that the question of what facts and law are to be applied on a review "are to be drawn from s 30, and the Act as a whole".[201] The submission is then as follows: s 60 of the Act being a procedural provision, the Minister does not contend that s 30(3)(a)(ii) operates to fix the procedural law as that applying at the time of the Controller's decision;[202] and, just as s 30(3)(a)(ii) is not determinative of what facts apply when determining a review, so it is not determinative of the procedural law that applies.[203]
[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.
[237] However, if I have erred in relation to the interpretation of s 30(3)(a)(ii) and, as a result, erred in the conclusion expressed in [236], I proceed in the alternative to consider MAC's contentions summarized in [221] above.
[238] The first argument advanced by MAC was that there had been no relevant Gazette notice pursuant to s 60(4)(a) of the Act. I accept that argument. Counsel for the defendants do not contend otherwise.
[239] In relation to the second argument advanced by MAC, I have concluded that there is no evidence that the Controller considered whether special circumstances justified a longer licence period than 10 years. As I explained in [222] above, when the Controller made a decision to grant the water extraction licence to Fortune on 8 April 2021, she was not required to consider special circumstances. The following extract from the Controller's reasons for decision makes clear that she relied on the opinion of the Minister in relation to special circumstances:

[244]

[240] MAC submits that the Controller's reasons are bereft of any reference to her opinion on special circumstances. I agree.
[241] Counsel for the Minister argue that the Controller must have considered whether "special circumstances" justified the granting of a licence for a period exceeding 10 years. Counsel contend that, given the prohibition in s 60(3) and the need for the Controller to make the decision, it is implied that the Controller must herself have been satisfied of the existence of the special circumstances for the purposes of the former s 60(4): "[it] would be improbable that the Controller might specify the period of the licence without ... considering and accepting the existence of special circumstances which justify the longer period".[204]
[242] I am not prepared to draw an inference that the Controller "must have considered" that special circumstances justified the grant of a licence for a period of 30 years simply because she granted a licence for a period of 30 years. My reluctance is on account of the following three matters: (1) the Controller did not give any reasons for her decision; for example, she did not state that she had considered matters for and against the grant of a licence which not only exceeded 10 years, but exceeded 10 years by a further 20 years; (2) given the reference to the opinion of the Minister for Environment in par 120 of the Controller's decision, immediately preceding the statement of the Controller's decision to grant the licence for a 30-year term, it appears more likely than not that it was the Minister's opinion which was the basis for the Controller's decision; and (3) the Controller did not express her agreement with the special circumstances on which the Minister's opinion relied.
[243] I acknowledge that Joanne Townsend had provided the Minister for Environment with the ministerial briefing in which she listed the matters raised by Fortune as special circumstances in support of its request for a 30-year licence term. I referred to that ministerial briefing in [99] above. However, the ministerial briefing was provided by Ms Townsend in her capacity as Chief Executive Officer, not as the Controller.
[244] The primary submission of counsel for the Minister is that the power in s 30(3)(a)(ii) includes the power on review to stand in all respects in the shoes of the Controller. That includes not only the Controller's power to grant a licence to take groundwater under s 60(1) of the Act but also the power under s 60(4) to grant such a licence for a period exceeding 10 years if satisfied that special circumstances justify the longer period. Counsel for MAC contend that, under the Water Act 1992, it is the Controller, not the Minister, who is empowered by s 60(4) of the Act.[205] If that contention were correct, then it would apply also to s 60(1) of the Act, and the Minister would not have the power on review to substitute a decision granting a licence to take groundwater under s 60(1). I reject MAC's contention. I am satisfied that the 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.
[245] However, the problem in relation to the Minister's reasons is that she did not expressly state her satisfaction that special circumstances justified the licence period of 30 years. Counsel for the Minister submit that the reasons on the review disclose that the Minister was satisfied of the existence of matters that amount to "special circumstances" when she addressed the contention by the Reviewing Persons that the licence term granted by the Controller should not have been 30 years. On that basis, they submit that the Minister's reasons need to be read in light of the grounds being agitated on the review, which expressly contended that there were no "special circumstances".[206]
[246] It is appropriate to consider what is meant by "special circumstances". Counsel for the Minister rely on the decision of Bray CJ in Baskerville v Martin.[207] The issue considered was the meaning of the expression 'special reasons' in s 102(2) Motor Vehicles Act 1959-1963 (SA). The Chief Justice observed:[208]

[252]

(a) The Central Land Council (on behalf of MAC and others) extracted s 60(4) of the Water Act 1992, referred to special circumstances and then contended the "Controller should not have granted the Singleton Water Licence for a term of more than 10 years given the uncertainty underlying the Groundwater Model and the potential impacts of granting the Singleton Water Licence." [214] The Central Land Council submitted that special circumstances - being "sound scientific knowledge of the water resource from which the licence takes water" and "the impacts of extraction have been or can be assessed with a high degree of certainty" - "these [special circumstances] do not exist for the water extracted from the Western Davenport District".[215]

(b) The Environment Centre NT Incorporated contended there was an "insufficient basis for the extension of the term of the licence under s 45(4) [sic] of the Water Act."[216] The Environment Centre NT Incorporated submitted "Given the high degree of scientific uncertainty underpinning the WDWAP, the statement in the WDWAP that future water allocation plans may have reduced estimated sustainable yield, and the likelihood of serous and irreversible impacts, this extension is unwarranted, and puts the water resource at significant risk."[217]

(c) In support of the 30-year term, Fortune raised the following as special circumstances: 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.[218]

(d) The Department in turn submitted that it did "not accept that the level of uncertainty is insufficient and considers that any residual uncertainty is appropriately managed through the licence conditions, and in particular the requirement for an approved monitoring plan and to implement an adaptive management plan."[219] The Department submitted that it did "not accept that the management of residual uncertainty through these conditions precludes the grant of a 30 year licence. The development proposal extends beyond 10 years and can only consider staging and conditioning the development through the period that the development is proposed".[220]

[253]

[253] Counsel for the Minister place reliance on the Minister's statement that she had considered the above submissions.[221]
[254] Counsel for the Minister contend that it was against that backdrop that the Review Panel reviewed and considered both the first Minister's decision and the Controller's decision.[222] It also had regard to the reviewing persons' submissions addressing the issue.[223] The Review Panel turned its mind to the issue and 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."[224] Counsel argue that the latter was a finding of a "special circumstance" and a rejection that there was not a "special circumstance". They further submit that the Minister expressly adopted the Review Panel's conclusion by setting out the Review Panel's finding of a special circumstance on the 'Licence Period' as it related to the issue raised on review.[225] The Minister "determined to accept the conclusions of the Review Panel for the reasons it has given on each of the issues raised".[226]
[255] I interpose my response to that part of the submission in the previous paragraph referring to the Minister having set out the Review Panel's finding of a special circumstance. 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 in the previous paragraph.[227] 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 Panel's 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.
[256] Counsel for the Minister further submit that the Minister, as part of the ministerial briefing, reviewed and considered,[228] the first Minister's decision,[229] the Controller's decision,[230] and the submissions made by the reviewing persons to the Review Panel.[231]
[257] Counsel for the Minister submit that the Minister's approach as expressed in the decision was to grant the Licence "on the same basis as the Controller" but with the identified additions and amendments to the conditions of the Licence.[232] Counsel contend that, in doing so, the Minister should be understood to have accepted the first Minister's opinion (which was attached to the Ministerial Briefing and from which she did not depart) when she granted the Licence on similar terms to that granted by the Controller, but with the variations she identified.[233] The Minister is thus said to have complied with the requirement in s 60(4)(b) of the Water Act 1992.
[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.[234] 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,[235] 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.[236] 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.[237] 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.
[264] That leads to a consideration of the consequences. Clearly there would be at least some invalidity. The question for determination is whether the Licence would be wholly invalid, or only partially invalid, that is, valid for 10 years and invalid to the extent of the next 20 years. Counsel for the Minister refer to Project Blue Sky v The Australian Broadcasting Authority for the proposition that whether an act done in breach of a condition regulating the exercise of a statutory power is invalid depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.[238] Counsel refer to the test for determining the issue of validity which was preferred by the majority in Project Blue Sky,[239] namely whether it was a purpose of the legislation that an act done in breach of the provision would be invalid. On the basis of those judicial statements, counsel for the Minister contend that the only purpose that can be discerned in the Water Act 1992 is that a licence for a period longer than 10 years would not be valid in the absence of there being satisfaction as to special circumstances, not that there would be no valid licence granted at all. They contend, inter alia, that s 60(4) only regulates the power of the Minister to specify a longer period of the licence than that specified in s 60(3). If there were a failure to reach satisfaction that special circumstances justified the longer period, a licence granted under s 60(1) of the Water Act 1992 would operate for a period of 10 years.
[265] The Minister's argument has a certain attraction, but I do not think it is right. The licence itself specified a commencement date of 1 December 2021 and an expiry date of 8 April 2051.[240] I do not see that licence term as somehow divisible. As counsel for MAC contend, it does not follow that an invalid grant for more than 10 years somehow defaults to a valid grant for less than 10 years. Moreover, as the majority observed in Forrest & Forrest Pty Ltd v Wilson: [241]

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

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