//
[2025] NTCA 6
General information, not legal advice.
Court of Appeal (NT)
2025-05-12
Burns JJ
Original judgment source is linked above.
APPEALS - Administrative review - Merits review - Review de novo - Misconstruction - Impermissible use of conditions - Failure to consider - Procedural fairness.
ENERGY AND RESOURCES - Water - Water access licences - Use.
STATUTORY INTERPRETATION - Legislative purpose - Earlier and later provisions - Ordinary meaning - Water Act 1992 (NT), , and s(1).
Water Act 1992 (NT), s 4, s 22, s 22B, s 22B(1), s 22B(4), s 22B(5)(a), s 30, s 30(1), s 30(3), s 30(3)(a), s 30(3)(a)(i), s 30(3)(a)(ii), s 30(3)(b), s 30(4), s 31, s 60, s 60(4), s 60(4)(a), s 60(4)(b), s 71B(1), s 71B(4), s 71E(4)(a), s 90, s 90(1), s 90(1)(ab), s 90(1)(k), Part 6
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) [2012] FCA 403; (2012) 187 LGERA 161; Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301; Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266; Coulton v Holcombe ([1986] HCA 33; 1986) 162 CLR 1; DVO16 v Minister for Immigration and Border Protection and Anor [2021] HCA 12, 273 CLR 177; Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management [2015] NTSC 30; (2015) 35 NTLR 140; Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430; Fraser Henleins Pty Ltd v Cody [1945] HCA 49; (1945) 70 CLR 100; GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647; ICM Agriculture Pty Ltd v Commonwealth of Australia [2009] HCA 51; (2009) 240 CLR 140; JB v Northern Territory [2019] NTCA 1; Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1980) 1 FCR 80; King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184; Kioa v West (1985) 159 CLR 550; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; Michelmore v Minister for Environment and Conservation [2004] SASC 415; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 46; Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Planning as Delegate of the Minister for Environment & Anor; Arid Lands Environment Centre Inc v Minister for Environment & Anor [2024] NTSC 4; Multicon Engineering Pty Ltd v Federal Airports Corp (1997) NSWLR 631; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Queensland v Humane Society International (Australia) Inc [2019] FCAFC 163; (2019) 272 FCR 310; R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; Re Costello and Secretary, Department of Transport [1979] AATA 184; (1979) 2 ALD 934; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; TAB Ltd v Racing Victoria Ltd [2009] VSC 338; Television Corporation Ltd v Commonwealth; Amalgamated Television Services Pty Ltd v Postmaster-General (Cth) [1963] HCA 30; (1963) 109 CLR 59; University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, referred to
First Respondent: Solicitor of the Northern Territory
Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Housing as delegate of the Minister for Environment & Anor [2025] NTCA 6
MINISTER FOR TERRITORY FAMILIES AND URBAN HOUSING as delegate of the MINISTER FOR ENVIRONMENT
In Australia, water and rights to use water are of critical importance, not just to those who are immediately interested in particular water rights, but to society as a whole.
Protect Aboriginal cultural values associated with water and provide access to water resources to support local Aboriginal economic development.[4]
The Water Act 1992 (NT)
An Act to provide for the Investigation, allocation, use, control, protection, management and administration of water resources, and for related purposes
water occurring or obtained from below the surface of the ground (other than water contained in works, not being a bore, for the distribution, reticulation, transportation, storage or treatment of water or waste) and includes water occurring in or obtained from a bore or aquifer.
(1) Subject to this Act, the Controller may, on the Controller's own initiative or on application in the prescribed manner and form, grant to a person a licence in the prescribed form to take water from a bore.
(4) A licence may be granted under subsection (1) for a period exceeding 10 years if:
(a) the licence is for a purpose, or meets criteria, that the Minister, by Gazette notice, specifies as justifying a longer period; or
(b) the Controller is satisfied that special circumstances justify the longer period.
(4) The Controller may, where in the opinion of the Minister there are special circumstances that justify so granting the licence, grant a licence for such period exceeding 10 years as is specified in the licence document.
(1) In deciding whether to grant, amend or modify a permit, licence or consent under section 41, 57, 63, 65, 67, 74 or 93(1), or in making a water extraction licence decision, the Controller must take into account any of the following factors that are relevant to the decision:
(a) the availability of water in the area in question;
(ab) any water allocation plan applying to the area in question;
(b) the existing and likely future demand for water for domestic purposes in the area in question;
(c) any adverse effects likely to be created as a result of activities under the permit, licence or consent on the supply of water to which any person other than the applicant is entitled under this Act;
(d) the quantity or quality of water to which the applicant is or may be entitled from other sources;
(e) the designated beneficial uses of the water and the quality criteria pertaining to the beneficial uses;
(f) the provisions of any agreement made by or on behalf of the Territory with a State of the Commonwealth concerning the sharing of water;
(g) existing or proposed facilities on, or in the area of, the land in question for the retention, recovery or release of drainage water, whether surface or sub-surface drainage water;
(h) the adverse effects, if any, likely to be created by such drainage water resulting from activities under the licence on the quality of any other water or on the use or potential use of any other land;
(i) the provisions under the Planning Act 1999 relating to the development or use of land in the area in question;
(j) other factors the Controller considers should be taken into account or that the Controller is required to take into account under any other law in force in the Territory.
applicant includes the person to whom a permit, licence or consent is or is to be granted when the Controller acts on the Controller's own initiative without an application having been made.
(1) The Minister may, by notice in the Gazette, declare one or more water allocation plans in respect of all or part of a water control district.
(2) The Minister must specify the period (not longer than 10 years) that a water allocation plan is to remain in force.
(3) The Minister must ensure that a review of a water allocation plan is conducted at intervals not longer than 5 years.
(4) Water resource management in a water control district is to be in accordance with any water allocation plan declared in respect of the district.
(5) The water allocation plans for a water control district are to ensure that:
(a) water is allocated within the estimated sustainable yield to beneficial uses;
(b) the total water use for all beneficial uses (including those provided through rural stock and domestic use and licences granted under sections 45 and 60) is less than the sum of the allocations to each beneficial use;
(c) the right to take water under a licence granted under section 45 or 60 is able to be traded (in part or in full); and
(d) as far as possible - the full cost for water resources management is to be recovered through administrative charges to licensees and operational contributions from licensees.
(6) An allocation under subsection (5)(a) is to include an allocation to the environment.
(7) An allocation under subsection (5)(a) is to include an Aboriginal water reserve if any of the land in the water control district to which the water allocation plan relates is eligible land.
Misconstruction of s 30(3)(a)(ii) of the Water Act
a) misconstruction of s 30(3)(a)(ii) of the Act (Issue 1); > > b) misconstruction of ss 22B and 90(1)(ab) of the Act (Issue 2); > > c) the impermissible use of conditions (Issue 3); > > d) a failure to consider Aboriginal cultural values (Issue 4); and > > e) errors in considering arguments in respect of a denial of procedural fairness (Issue 5).
MAC Ground 9 (Appeal Ground 1): Construction of section 30(3)(a)(ii) of the Water Act 1992 (NT)
(2) Should the primary judge be in error in concluding that section 60 of the Act as it stood at the time of the Controller's decision applied on the review as a result of the operation of section 30 (3)(a)(ii), the First Respondent contends that:
(a) the First Respondent was satisfied that there were "special circumstances" as the existence of special circumstances was a contested issue on the review which the Review Panel resolved and the First Respondent accepted, and in any event was satisfied of matters which together amount to "special circumstances" within the meaning of s 60(4)(b), justifying the grant of the licence for a longer period than 10 years and in accordance with s 60(4)(b) of the Water Act 1992 (NT).
(3) Should the primary judge be correct in finding that the First Respondent was not satisfied that special circumstances justified the grant of the licence for a period of 30 years that being "the longer period" referred to in s 60(4)(b)...the First Respondent contends that:
(a) the effect of non-compliance with s 60(4)(b) is only that a licence for a period longer than 10 years would not be valid, not that there would be no valid licence at all.
ALEC Ground 1 (Appeal Ground 2): Construction of ss 22B and 90(1)(ab) of the Water Act 1992.
(4) The First Respondent contends that the finding that there is no requirement that a water extraction licence decision must accord with, or not be inconsistent with a water allocation plan applying to the area in question...is supported on the following additional basis:
(a) A "water allocation plan" within the meaning of s 22B of the Water Act 1992 (NT) is only that part of the content of plan that addresses the matters specified in s 22B(5), and while a plan when published may include other information, such other information, if included, is not the "water allocation plan" within the meaning of the Act.
Issue 1: Misconstruction of s 30(3)(a)(ii) of the Act
[234] In my opinion, the sub-paragraph should be interpreted such that the decision which the Controller "should have made in the first instance" means a decision under the law as it stood at the time of the Controller's decision. The fact that the Minister is required to take into account factual matters or factual considerations arising subsequently to the Controller's decision does not mean that the Minister is required to take into account legislative changes enacted subsequently. In my analysis, the relevant question is: "How could the Minister be of the opinion that her intended substitute decision was the one which the Controller 'should have made in the first instance' if the intended substitute decision is to be made under a statutory framework which did not exist at the time of the Controller's decision?" Logically, the Controller could not have made a decision in the first instance to comply with a legislative provision which had not come into effect.
[235] The construction I prefer accords with the ordinary grammatical meaning of the text of s 30(3)(a)(ii). It is consistent with context and legislative purpose. The result is not unreasonable or absurd. As applied in the present case, it operates to preserve the 'value' of the processes engaged in by multiple parties in the 12 months preceding the amendment to s 60(4) of the Act. In my opinion, there is no incongruity in the Minister being able to take into account subsequent facts, but not being bound by subsequent changes in the law. Facts which emerge subsequently may well highlight deficiencies in the Controller's decision, and lead the Minister to make a decision which, in the Minister's opinion, the Controller should have made in the first instance; whereas the fact that the law may have changed says nothing about whether the decision was the one which the Controller should have made in the first instance, before the legislative change.
[236] In my judgment, the unamended s 60 of the Act applied on the review, as a result of the text of s 30(3)(a)(ii). On that basis, the Minister did not err in law by failing to comply with s 60(4) of the Water Act 1992, as in force on 15 November 2021. MAC's contentions referred to in [221] cannot be maintained, and ground 9 should be dismissed.[10]
a) First, the powers vested in the Review Panel by s 31 of the Act confirm that the Minister is undertaking contemporaneous review when exercising the Minister's power under sub paragraphs 30(3)(a)(i) or (ii) of the Act. The powers vested in the Review Panel include the power to require a person to appear before the Review Panel and/or to produce any relevant documents, to require a person to give evidence on oath, to require a person appearing before the Review Panel to answer relevant questions and to enable the Review Panel or a person authorised by it, to enter and inspect land for the purposes of a proceeding before the Review Panel. Upon completion of its function, the Review Panel is obliged to advise the Minister. The Minister, therefore, in making a determination whether to uphold the decision or to substitute a fresh decision, is not confined to considering only the material that was before the Controller. MAC submitted that there is no reason to distinguish between factual and legal considerations when the Minister makes the determination. > > b) Secondly, MAC submitted that the powers vested in the Minister by s 30(3) are expressed to be "subject to this Act". MAC submitted that it was open to the legislature to express in clear terms any temporal modification to the orthodox position that the applicable law is that at the time of the review and the legislature had not done so. Further, the absence of a transitional provision to preserve the operation of s 60(4) with regard to applications pending at the time of the amendments to s 60, MAC submitted, tells against the application of the repealed provision in the review process.
Thirdly (and somewhat unnecessarily) MAC submitted that there had been no suggestion by any party that s 30(1) gave rise to an accrued right so as to invoke the operation of s 12(2)(c) of the Interpretation Act 1978 (NT). That section provides that the repeal of an Act, or part of an Act, does not affect a right, privilege, obligation or liability acquired, accrued or incurred under an Act or the part of the Act so repealed.
Concerns were raised by Reviewing Persons regarding the 30 year tenure of the licence.
The Review Panel is of the view that a licence term of greater than 10 years, with suitable conditions precedent and staged entitlements, is appropriate for a large-scale development such as that proposed.[12]
[258] The question for my determination is whether, in the absence of a clear statement to this effect, an inference can properly be drawn that the Minister was satisfied that special circumstances justified the licence period of 30 years. Counsel for MAC caution against reliance on "implications, obtuse references or imprecisions". I consider that caution both appropriate and relevant. My concern is that acceptance of the submissions of counsel for the Minister would require a deal of conjecture on my part.
[259] As I interpret s 60(4) of the Act, in force at the date of the Minister's decision, the Minister was required to be satisfied that special circumstances justified the grant of a licence for a period of 30 years, that period being "the longer period" referred to in s 60(4)(b). The use of the definite article points to the need for satisfaction about the actual proposed period of a particular licence, not simply more general satisfaction that it be for a period exceeding 10 years.
[260] I bear in mind that the property in and the rights to the "use, flow and control" of all water in the Territory, including groundwater, is vested in the Territory. The Minister exercises those rights on behalf of the Territory. As counsel for MAC point out, s 60(4)(b) is an important constraint on the exercise by the executive of the power to grant a licence to exploit an important resource. They refer to the decision of the majority in Forrest & Forrest Pty Ltd v Wilson, for the proposition that where a statutory regime confers power on the executive government to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant. MAC contends that satisfaction by the Controller that "special circumstances" existed was a jurisdictional pre-condition to the exercise of the power. Having found (in [244]) that the reference to the Controller in s 60(4)(b) is to be read and understood as a reference to the Minister on review, I will treat MAC's contention to be that satisfaction by the Minister on review that "special circumstances" existed was a jurisdictional pre-condition to the exercise of the power exercised by her to grant a licence for the longer period of 30 years.
[261] MAC submits that the only assessment made of "special circumstances" in this case was that by Minister Lawler when she provided an opinion as to special circumstances on 15 February 2021. The only reference to "special circumstances" in the decision of the Minister on review was her observation that Minister Lawler had provided her opinion on special circumstances and that the reviewing parties had raised a concern about Minister Lawler's ability to make a decision on account of apprehended bias. The Minister did not state whether or not she agreed with the opinion of Minister Lawler.
[262] MAC has established that there is no evidence that the Minister was satisfied that special circumstances justified the grant of a licence for a period of 30 years, that being "the longer period" referred to in s 60(4)(b). As mentioned in [245] above, the Minister did not expressly state her satisfaction that special circumstances justified the licence period of 30 years. Further, although the Minister made reference to the decision of Minister Lawler (the first Minister), that was in a different context. The Minister did not state that she adopted the opinion of Minister Lawler. I do not agree that the Minister "should be understood to have accepted the first Minister's opinion", simply because it was attached to the ministerial briefing document. Further, the suggestion that the Minister relied on the Controller's opinion cannot be sustained because, for reasons explained in [242], the Controller did not relevantly state her own satisfaction and her decision was more likely than not based on Minister Lawler's opinion, and not the Controller's own opinion. Finally, the suggestion that the Minister was entitled to rely on the opinion of the Review Panel similarly cannot be sustained because of the very limited comments made by the Review Panel, referred to by me at [255] above.
[263] My conclusion is that, if it were a jurisdictional pre-condition that the Minister needed to be satisfied that special circumstances justified the grant of a licence for a period of 30 years, then that pre-condition was not satisfied.[13]
Unlike provisions which enable an appellate tribunal to vary the original decision, the decision of the Minister under s 30(3)(a)(ii) is his or her decision.
A decision by the Tribunal...to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration...requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43 (1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.
Insofar as the ERD Court is empowered to reach the decision "that should have been made in the first instance", the ERD Court stands in the shoes of the Minister.
Where, on a rehearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time.
The previous section refers to a ministerial discretion to grant a licence to take groundwater for a period exceeding 10 years, which would otherwise be the maximum period stipulated in subsection 60(3). The clause alters the operation of the old subsection 60(4) by providing for a licence to meet criteria to justify the longer licence period, whereas previously the decision was based upon the Minister's opinion.
This creates additional certainty for industry, as this allows for the creation of set criteria and circumstances which can be made available to applicants and provide transparency in the decision-making process.
a) the Minister never, in fact, reached any satisfaction about "special circumstances" which would justify the grant of a licence for a term of 30 years (Ground 2); and > > b) nothing in the Act justified severing that term of the Licence which exceeded 10 years, leaving the first 10 years of the Licence as valid (Ground 3).
The Review Panel did not find that there were any special circumstances which justified the grant of a licence for the longer period of 30 years. It simply expressed the view correctly attributed to it [that a licence term of greater than 10 years, with suitable conditions precedent and staged entitlements [was] appropriate for a large-scale development such as that proposed]. The Minister then did no more than set out the view of the Review Panel that a licence term of greater than 10 years was "appropriate" for a large-scale development such as that proposed. It would therefore be more correct to say that the Minister set out what is now contended to have been the Review Panels finding of a special circumstance. However, I do not agree that the Review Panel made a relevant finding in relation to special circumstances, because it made no mention of being satisfied that special circumstances justified the licence period of 30 years.
A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.
a) uphold the action or decision of the Controller (s 30(3)(a)(i)); > > b) substitute for the Controller's decision the decision that the Minister is satisfied should have been made by the Controller in the first instance (s 30(3)(a)(ii)); > > c) refer the matter back to the Controller for reconsideration (s 30(3)(a)(iii)); or > > d) refer the matter to the Review Panel for advice (s 30(3)(b)).
Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence.
a) the issue of the term of the licence was an important issue both for Fortune and MAC (and the other objectors); > > b) the Controller had granted a licence for 30 years; > > c) special circumstances had to be found in order to justify a licence of 30 years duration; > > d) the requirement to find special circumstances was found in s 60 of the Act; > > e) special circumstances had been found by the Minister for Environment and had been communicated to the Controller; > > f) the Review Panel was providing her with advice regarding, inter alia, how she should exercise her powers on review after a hearing de novo; > > g) the Review Panel, in the context of a challenge to a 30 year lease duration, expressed the opinion that a lease term in excess of 10 years was appropriate; and > > h) she was conducting a hearing de novo which involved, amongst other things, a requirement for her to consider the existence of the previously identified special circumstances which would justify a 30 year licence.
I have determined to accept the conclusions of the Review Panel for the reasons it has given on each of the issues raised by the Reviewing Persons.[24]
a) At the time of the Minister's decision to grant the Licence, the WDWAP was in place and applied to the geographical area to which the Licence applied. > > b) The WDWAP established a "groundwater dependent ecosystem protection area" (GDE Protection Area) which overlapped with the bore field approved by the Minister in granting the Licence. > > c) The WDWAP relevantly provided that "proposed extraction should not result in a change to groundwater conditions beyond" certain identified limits within the GDE Protection Area. The following limits were then provided: > > 1. Modelled extraction does not cause the maximum depth to water table to exceed 15 metres below ground level; > 2. Modelled extraction does not result in the maximum depth to water table declining by more than 50% below the levels that would be expected under a natural baseline scenario (no pumping scenario); and > 3. Modelled extraction does not result in a rate of groundwater drawdown that exceeds 0.2 metres/year.
[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.
(a) Section 90(1)(ab) of the Act required the Controller (and therefore the Minister on review) to take into account in making a "water extraction licence decision" any water allocation plan applying to the area in question;
(b) Part 8.3.1 of the WDWAP states that "Groundwater extraction licence applications should demonstrate compliance with the criteria laid out in this WDWAP";
(c) Part 8.2 of the WDWAP, headed "Protection of environmental and cultural values", contained the following:
8.2.1 Terrestrial vegetation groundwater dependent ecosystems
Proposed extraction should not result in a change to groundwater conditions beyond the following limits within the GDE protection area (Figure 11) unless it can be shown that the vegetation is not accessing groundwater. Assessment of compliance with these criteria should be based on groundwater modelling giving consideration to the cumulative effect of all approved extraction.
Limits to change in groundwater levels within the GDE protection area
The Department of Environment and Natural Resources will monitor groundwater drawdown and the health and condition of a set of GDE reference sites to monitor the effectiveness of GDE protection approaches and refine the understanding of GDE groundwater interactions and dependence. Results will be reported annually via the integrated annual report on monitoring and compliance. Where groundwater drawdown trigger levels are exceeded or unacceptable impacts from groundwater drawdown on GDE health are observed (i.e. change in morphology, composition or loss of function) this will trigger an adaptive management response. ...
(d) the material before the Controller made it clear that Fortune's proposal to extract 40,000 megalitres from the GDE protection area could not satisfy those criteria;
(e) instead of assessing Fortune's application against the WDWAP criteria, the Minister assessed it against the Guideline which adopted "radically less rigorous" standards than the criteria found in the WDWAP; and
(f) by doing so, the Minister made a jurisdictional error.
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.
a) Section 22B(5) makes provision for what a "water allocation plan" must ensure, but does not provide for the content of a water allocation plan; > > b) Sub-sections 22B(4) and (5), read together, demonstrate that a water allocation plan is concerned with attaining a result or outcome; > > c) The Oxford English Dictionary definition of a "plan" is a scheme of action according to which something is to be done; > > d) The result to be achieved by a water allocation plan is stated by the Act and is "water resource management" in a district, which includes those matters listed in s 22B(5) including identifying the estimated sustainable yield of a water resource, allocating the estimated sustainable yield amongst beneficial uses and ensuring total water use is less than the sum of allocation to each beneficial use; > > e) Processes of estimation and allocation are inherently uncertain and involve making choices. There is a risk of detrimental consequences to the resource, the environment and users of the resource if the plan gets it wrong. For these reasons, the Act (at least impliedly) requires matters including objectives, principles, values, risk assessments and risk management to be included within the plan. It also requires ongoing monitoring of the use of water, if the outcome of ensuring total water use stays within the allocated limits to be achieved.
a) The requirement in section 22B(5) that water allocation plans are to ensure the matters thereafter set out in the section suggests, MAC submitted, that water allocation plans are concerned with achieving the result of "water resource management". > > b) There is no fixed method to determine an "estimated sustainable yield" (s 22B(5)(a)). An estimated sustainable yield is "estimated" as it is inherently uncertain. There are risks for both the resource, the environment and users involved in determining an estimated sustainable yield. Identifying an estimated sustainable yield involves more than just stating a number, it involves identifying objectives, outcomes and values. Once a method of identifying an estimated sustainable yield is identified, it involves assessing the range of values produced by that method against the objectives, outcomes and values. It also involves identifying and managing the risks of getting the estimated sustainable yield sufficiently wrong that it imperils the resource, the environment and users. > > c) The task of allocating water within the estimated sustainable yield to beneficial uses involves making choices between those uses and prioritising one over another, which can only be done by reference to objectives and values. > > d) Section 22B(5)(b) requires a water allocation plan to ensure that the "total water use" for all beneficial uses, including those provided under licenses granted under section 60, is less than the sum of allocation to each beneficial use. To achieve this, the plan must take into account actual water use and must involve ongoing monitoring of water use.
a) It is well established that an appeal court may entertain a "new" question of law or point of construction so long as it is in the interests of justice to do so and there is no evidence that could have been given at trial which could possibly have prevented the point from succeeding, or the raising of the point below would have caused a defendant to conduct the case differently at trial.[31] > > b) Issue 2 is not "new" to the proceeding. It was fully argued in the proceeding before the primary judge and all evidence necessary to decide was before the Court. The respondents were on notice of, and fully responded to, the Issue. It cannot be said that the respondents would have run their case differently had the issue being argued by MAC rather than ALEC. > > c) Issue 2 concerns a matter of legal construction. There could be no question about MAC's standing to agitate the issue in the proceedings before the primary judge. As ALEC has not pursued its appeal rights, an important question of construction regarding the Act will go untested if not determined in the present proceedings. > > d) The primary judge heard and determined the proceedings by MAC and ALEC together and considered all grounds raised by both parties in his Honours consolidated reasons. The primary judge observed that there was some common ground between the contentions raised by both MAC and ALEC. > > e) There is no discernible prejudice to the respondents in permitting MAC to argue Issue 2 in this appeal. The Minister agitates this Issue in the Notice of Contention, and Fortune has not objected to MAC raising the Issue in the present appeal. > > f) Refusing to permit MAC to argue Issue 2 in the absence of an appeal by ALEC would only encourage the unnecessary proliferation of legal costs, and would not be in the interests of justice.
a) Generally, a party is bound by the conduct of its grounds taken in the court at First instance.[32] Where all of the facts have been established beyond controversy or the point is one of construction or law, and it is in the interests of justice to entertain the point, an appellate court may not strictly apply that principle.[33] > > b) ALEC commenced its proceedings on 13 January 2022 and MAC commenced proceedings on 28 January 2022. While there was some common ground between the contentions raised by ALEC and MAC, this did not include a contention by MAC the equivalent of Issue 2 which it now seeks to argue. > > c) MAC sought, and was granted, leave to amend its Originating Motion to include an additional ground in the first instance proceedings. MAC did not, however, adopt the grounds in the application for judicial review brought by ALEC, and it has not sought to explain why it did not bring that ground in the first instance proceedings. This is significant because the point that MAC proposes now to take has its source in Ground 1 of the application for judicial review brought by ALEC. > > d) It cannot be expedient or in the interests of justice for MAC to raise an issue with provenance in the ALEC proceedings merely because ALEC has chosen not to pursue its right of appeal. That is all the more so where the argument MAC now seeks to advance based upon the statutory language of the Act was not one advanced by ALEC before the primary judge. > > e) In any event, MAC's new contention is wrong. The primary judge did not err in concluding that the obligation on the Minister in s 90 (1)(ab) to "take into account any water allocation plan applying to the area in question" meant exactly what those words mean, and did not require the Minister to act in accordance with the water allocation plan by reason of s 22B(4). The new distinction sought to be drawn by MAC is not sourced in the language of the Act and lacks merit.
Issue 3: the impermissible use of conditions (Appeal Grounds 5, 6, and 7)
a) Conditions about an adaptive management plan and monitoring program (CP7 & CP8). > > b) Conditions about assessing the water resource (CP9). > > c) Conditions about Aboriginal cultural values (CP5 & CP10).
a) The condition must be related to the purpose for which the
function of the Minister is being exercised.[35]
b) 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.[36]
c) A purported decision to grant a licence will not be a decision if fulfilment of the condition significantly alters the proposal in respect of which the application was made.[37]
d) A purported decision 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. Put another way, where a purported decision leaves for later determination an important aspect of the proposal and the determination of that aspect could alter the proposal in a fundamental respect, that decision cannot be seen as final and is not a decision on the proposal.[38]
e) Where the criteria for future assessment are imprecise or unspecified, there may be an effective, but impermissible, delegation of authority.[39]
[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. 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.
[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.
[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.
In making her decision the Controller granted the Licence based on water being available under the Plan; the risk to Groundwater Dependent Ecosystems (GDEs) being within thresholds outlined in the Guideline which was the most recent scientific knowledge provided to the Controller and meet the objectives of the Plan to avoid as far as possible detrimental impacts to GDEs as a consequence of the proposed water extraction.
The Controller recognised there were a number of uncertainties associated with the location and types of GDEs and uncertainties relating to salinity and groundwater quality and conditioned the licence to include conditions precedent requiring the Licence Holder to undertake GDE mapping and an assessment of potential salinity impacts of the water taken under the Licence and development of an adaptive management plan and monitoring program, which are to be approved by the Controller. The conditions precedent also require the Licence Holder obtain approval (or advice from the relevant authority that an approval is not required) for land clearing; non pastoral use; and environment protection approval under the EP Act.
In addition to establishing conditions precedent to the Licence Holder being able to drawdown any of its entitlement under the Licence, the Controller established staging conditions limiting the volume of water that could be taken in any period to allow for the impacts of the water taken in the previous stage/s to be monitored in accordance with the approved monitoring program, to determine that the extraction is behaving as predicted and is managed within the defined thresholds that meet the environmental and cultural objectives outlined in an approved adaptive management plan.
The staged release of water occurs over 2 yearly intervals over the first 6 years and the Licence Holder must have the approval of the Controller to proceed from one stage to the next which will require the Controller being comfortable that the impacts of the previous level of extraction are as predicted, or appropriate responses have been undertaken under an adaptive management plan.[41]
I have determined to accept the conclusions of the Review Panel for the reasons it has given on each of the issues raised by the Reviewing Persons with the exception of the Review Panel's recommendation of an amendment to staging of the licence.
I have determined to adopt the Review Panel's recommendation to substitute the decision of the Controller. The licence which I propose to grant with additional and amended conditions in my opinion appropriately gives effect to the Review Panel's recommendations with the exception of the amendment to staging.
I am satisfied that that (sic) the conditions precedent and other conditions on this licence taken as a whole, including those that are additional and the amendments, address the risks, potential impacts, and uncertainty associated with the proposed extraction of water. In particular this course allows the Licence Holder to continue to undertake the works, investigations and other activities required to meet the conditions precedent. They will provide additional information and will inform the development of appropriate plans. That will not only provide greater certainty but allow the Licence Holder, if the conditions are satisfied, to ultimately be able to extract water for productive activities in the future.
By granting the licence with additional conditions, I accept the view of the Review Panel for the reasons it has given that further assessment of the water resources on Single Station (sic) is required and have established a new condition precedent CP9 which requires the Licence Holder to develop and submit for approval by the Controller a program to assess the water resource on the Land which is to incorporate a drilling program, including both production and monitoring bores; verification of the stratigraphy of the subsurface of the Land; identify the aquifers; verify their properties and quantify their yields; and determine interconnectivity.[42]
...The challenge here is that the adaptive management plan will rely on information that will only become available once extraction commences, and so it follows that the volume of water available for extraction, and the period of the entitlement, should be commensurate with those risks and uncertainties around aquifer response and GDE impact that are regulated through the adaptive management framework. It is the Panel's view that these risks and uncertainties need to be better defined before there can be confidence in the decision to provide the volumes of water that the Licence makes available to the proponent. The Panel's view is that the monitoring plan and adaptive management plan could be informed through an environmental assessment process as anticipated under the Environment Protection Act 2019.
The Panel's opinion is that in order to better manage the risk and uncertainty associated with the project, entitlements beyond Stage 1 should be withheld until sufficient data has been gathered and analysed to enable more confidence in the understanding of long-term aquifer behaviour and GDE response.
In the Panel's opinion, the following is also necessary to reduce model uncertainty prior to the extraction of water for horticulture under this Licence:
In the Panel's view it is prudent for the Controller to consider uncertainty and risk in relation to the ESY [estimated sustainable yield] when making a licence decision and this may result in a precautionary approach, for example through conditioning and/or staging licence entitlements. The WAP identifies that there are high to extreme risk ratings in relation to the determination of the ESY and its potential downwards revision. In the Panel's opinion the staging of a large-scale water extraction licence should align with management strategies and activities that aim to reduce that risk.
[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.... 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...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.
[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 was 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. In making any such decision, the Controller was required to have regard to the s 90(1) factors... 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.
a) it is consistent with the role assigned to the Controller by the Act; and > > b) in making the review decision, the Minister was standing in the shoes of the Controller and exercising the powers of the Controller.
Issue 4- Failure to consider Aboriginal cultural values (Grounds of Appeal 8 and 9)
It is not clear to the Panel which if any of those activities identified have been progressed and were therefore available to the proponents in making their licence application, or the Controller in making her decision.
The Panel is not able to form a view on the significance of the information presented in that report but is of the opinion that a comprehensive cultural impact assessment is required prior to the extraction of any significant volumes of water on Singleton Station.
[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. 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.
Issue 5: procedural fairness (Grounds of Appeal 10, 11 and 12)
In preparing advice for the Minister it would be of assistance if you could please articulate and provide clarification and further information regarding what the Review Panel meant by requiring a cultural values impact assessment to be undertaken as a new condition precedent. In providing this additional information it would also assist me to know what the Review Panel considered should be included in this assessment; and confirm whose responsibility it is to undertake this assessment.[60]
The key issue here, in the Panel's opinion, is that there is little in the Decision, or licence, that specifically addresses one of the key objectives of the Water Allocation Plan, i.e. "to protect Aboriginal cultural values associated with water".
The implementation activities related to cultural values... were intended to map and document the water dependent cultural values of the region, and would have enabled the development of a set of cultural reference points to be used by the proponent in their modelling of impacts and reflected in the adaptive management framework.
In lieu of this work having been done, the Panel's view is that it is now either up to the Department (in partnership with the CLC) to commit to undertake the necessary surveys and consultation/assessment described in the WAP, prior to significant groundwater extraction, or it is up to the proponent to facilitate that work. That work, which we have described as a cultural values impact assessment, needs to be undertaken as a pre-condition as it will provide the information that is required (but is not yet available) to inform our amended CP5.
The Panel is not equipped to fully define the terms of reference for a cultural values impact assessment but considers that these are some of the key components and work that needs to be done in order to meet the objectives of the WAP. Appropriate consultation is required and the Panel acknowledges that this may be a challenging process for the (sic) either the Department or the proponent.[61]
CP 10. Groundwater Dependent Aboriginal Cultural Values
Fortune Agribusiness recognises the importance of this issue and will work with the Government and relevant stakeholders to deliver the required assessment.
We accept the new CP 10 as written in your letter.[63]
It will clearly take us some time to revamp our farm development plan to accommodate this change. In providing an immediate response to this proposed change we are therefore relying on our judgements of the practical and financial impacts rather than detailed planning and modelling. It is our judgement that extending the Stage 1 development period from 2 years to 3 years or, with reservations, 4 years could possibly be accommodated, albeit with consequences as outlined above.
Extending the Stage 1 term to 5 years effectively converts the project into two largely separate projects, with the viability of the "Stage 1 Project" in serious question. This proposed change to the SC 1 will almost certainly increase the risks and uncertainties and likely make raising capital for the Singleton Horticulture Project more difficult. ...[64]
... Between MAC's opportunity to make submissions to the Review Panel and the Minister's decision, she came up with an entirely new (and MAC says legally invalid) approach of using conditions precedent to address, amongst other things, the cultural values of persons represented by MAC. The Minister recognised that something had changed: she had correspondence with the Review Panel about their recommendation, that was not disclosed to MAC. Further, the Minister recognised enough had changed that she was required to consult with Fortune about conditions precedent concerning the cultural values of persons represented by MAC. But she did not consult with MAC. To this point, MAC understood the Minister herself was going to take into account Aboriginal cultural values. Instead, she was proposing to give that task to Fortune and was not proposing to give MAC any say in how it might be conducted or what might be done with the assessment, notwithstanding the evidence before her showed that at least some matters involved sacred sites and sensitive values.[65]
The Minister relied upon material not available to [MAC], particularly "the information considered by the Review Panel, and its subsequent clarification of the requirements of a cultural values impact assessment"; and "the response by the Licence Holder to the Notice of consideration of amended conditions associated with [the Licence]''.
Further, [MAC] requested all of the digital files comprising the groundwater model so it could analyse that model and undertake spatial predictive uncertainty analysis of the model. [MAC] was denied the opportunity to undertake this analysis and present the results to either the Panel or the Minister.
Had the groundwater model been given to [MAC], it would have presented a report to the Controller, and the Panel, and the Minister about the spatial predictive uncertainty of the model and that report would have been directly relevant to CPs 5 to 10.
Had the "subsequent clarification of the requirements of a cultural values impact assessment" being given to [MAC], it would have made submissions to the Minister about appropriate licence conditions for the process for, and terms of reference of, the assessment.
Had the "response by the Licence Holder to the Notice of consideration of amended conditions" being given to [MAC], it would have made submissions to the Minister about the scientific basis for the period of stage 1.[66]
MAC has identified three specific kinds of material in respect of which it was denied procedural fairness: (a) the undisclosed files comprising the groundwater model; (b) undisclosed material concerning the cultural values assessment; and (c) undisclosed material concerning the length of stage 1. In each case, that material was directly relevant to a ground of review it put to the Minister and denial of the material meant MAC was prevented from putting its full case about those grounds. That establishes the practical unfairness.[67]
[The] content of the correspondence between the Department and the Review Panel providing "clarification" of the requirements of a cultural values impact assessment was clearly a matter directly impacting upon the rights of MAC. The Department asked the Review Panel to "articulate and provide clarification and further information regarding what the Review Panel meant by requiring a cultural values impact assessment to be undertaken as a new condition precedent". The request was made in order to assist the Department "to know what the Review Panel considered should be included in this assessment; and to confirm whose responsibility it is to undertake this assessment." The Review Panel makes clear that the answer to those questions would need to be informed by the input of the Central Land Council (CLC), the representative of MAC. Had MAC been aware of that correspondence it would have made detailed submissions on the process required to undertake a cultural values impact assessment, the necessary entity to conduct such a process and the appropriate terms of reference for the cultural values impact assessment.... By failing to then seek the views of the MAC, through CLC, prior to making her decision the Minister denied MAC procedural fairness and made a material error in her decision.[68]
The flaw in MAC's submission...is that it seeks to impose on the Minister an obligation not only to consider the written comments made under s 71B(4), but to thereafter oblige the Minister to give the persons who made such comments the opportunity to continue to comment, even after they had made additional written representations to the Review Panel and then engaged with the Review Panel by making oral representations and calling evidence at a formal meeting.[71]
a) it was not given the opportunity to ascertain the relevant issues because it was not informed of the possibility that steps would be imposed as conditions attaching to the Licence was granted; and > > b) it was not informed of the nature and content of any adverse material being further submissions that the Minister received from Fortune.
I have also considered the issues raised by Reviewing Persons regarding impact on cultural values from the activities under the licence and I accept the views of the Review Panel...[73]
There is no question substantial further work needs to be done. This work goes beyond what is presently required by CP5. Further, it is not appropriate to relegate the significant matter to a licence condition; it should be addressed as part of the application itself so that specific and considered conditions can be imposed, or the licence refused, if effective conditions are not possible.[76]
CP10. The licence holder must develop and submit to the Controller a groundwater dependent Aboriginal cultural values impact assessment. The assessment must:
(a) be prepared by a suitably qualified professional;
(b) identify, map and document (as appropriate) the cultural values of Aboriginal people that will be impacted by groundwater extraction under this licence;
(c) identify reference points to be used in modelling the impacts of groundwater extraction under this licence on the identified Aboriginal cultural values; and
(d) specify monitoring parameters, trigger values and limits for the reference points which can be used to initiate actions under an adaptive management framework.[77]
a) is a groundwater dependent Aboriginal cultural values impact assessment; and > > b) was prepared by a suitably qualified professional.
[2] Section 30(4) of the Act.
[3] Section 22B(1) of the Act.
[5] Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families & Urban Planning as Delegate of the Minister for Environment & Anor; Arid Lands Environment Centre Inc v Minister for Environment & Anor [2024] NTSC 4 (MAC NTSC 4).
[6] Section 9(2) of the Act.
[7] Section 90(1)(ab) of the Act.
[9] Section 30(3)(a)(ii) of the Act.
[11] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [35] - [38], [40] (Kirby J); [100] (Hayne and Heydon JJ) [143] (Kiefel J, with whom Crennan J agreed) (Shi); Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266 at [56]; Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1980) 1 FCR 80 at 81 ; Re Costello and Secretary, Department of Transport [1979] AATA 184; (1979) 2 ALD 934 at 943-945.
[15] (NSW) [1978] AATA 49; (1978) 1 ALD 167 at [175] - [176].
[16] [2004] SASC 415 (Michelmore).
[17] [1992] HCA 20; (1992) 174 CLR 430 at 448.
[19] [2024] HCA 12; (2024) 98 ALJR 610 at [29] (per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
[21] Section 30(4) of the Act.
[27] DVO16 v Minister for Immigration and Border Protection and Anor [2021] HCA 12; (2021) 273 CLR 177 at [12].
[29] Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41, per Mason J.
[31] Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438; JB & Ors v Northern Territory of Australia [2019] NTCA 1 at [217].
[32] University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483; Coulton v Holcombe ([1986] HCA 33; 1986) 162 CLR 1 at 7.
[33] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497; Multicon Engineering Pty Ltd v Federal Airports Corp (1997) NSWLR 631 at 644.
[34] Section 60(2) of the Act.
[35] Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 (Mison); Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301 at [163] (Buzzacott).
[36] Mison at 737; Buzzacott at [163]; Queensland v Humane Society International (Australia) Inc [2019] FCAFC 163; (2019) 272 FCR 310 at [109] - [113].
[37] Mison at 737; Buzzacott at [163].
[38] Mison at 739-740; Buzzacott at [165].
[39] GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647 at [48].
[49] King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 194 and 195-196; Television Corporation Ltd v Commonwealth; Amalgamated Television Services Pty Ltd v Postmaster-General (Cth) [1963] HCA 30; (1963) 109 CLR 59 at 71.
[50] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] and [93]; TAB Ltd v Racing Victoria Ltd [2009] VSC 338 at [32].
[52] Fraser Henleins Pty Ltd v Cody [1945] HCA 49; (1945) 70 CLR 100 at 113-114 and 128.
[53] Section 34 of the Act.
[54] Section 70 of the Act.
[55] Section 93 of the Act.
[56] Section 96(2)(a) of the Act.
[65] MAC's Outline of Submissions in Reply dated 13.08.24 at [51].
[66] AB 2204-2205 (Amended Originating Motion Between Parties dated 10.05.22).
[69] Section 71B(4) of the Act.
[74] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26](SZBEL); Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 46 at [97].
[75] SZBEL at [26]; Kioa v West (1985) 159 CLR 550 at 584-585.
Mpwerempwer Aboriginal Corporation RNTBC
Minister for Territory Families & Urban Housing as delegate for the Minister for the Environment & Anor [2025] NTCA 6
(2012) 187 LGERA 161
(2013) 215 FCR 301
(1999) 86 FCR 266
(2015) 35 NTLR 140
(1992) 174 CLR 430
(1945) 70 CLR 100
(2008) 72 NSWLR 647
(2009) 240 CLR 140
(1980) 1 FCR 80
(1945) 71 CLR 184
(1985) 159 CLR 550
(2024) 98 ALJR 610
(1991) 23 NSWLR 734
(1998) 194 CLR 355
(2019) 272 FCR 310
(1980) 144 CLR 13
(2008) 235 CLR 286
(1950) 81 CLR 418
(2006) 228 CLR 152
(1963) 109 CLR 59
(1985) 59 ALJR 481
(1988) 180 CLR 491
(2021) 273 CLR 177
(1986) 162 CLR 24