ALEC made history in February 2022 when it made the decision for the first time to commence legal proceedings in the Northern Territory Supreme Court and challenge the granting of the Singleton Station groundwater licence.
ALEC was challenging whether the groundwater licence, which was the largest in the Northern Territory’s history and largest freshwater groundwater licence in Australia, was lawfully granted under the Territory Water Act 1992. It was not about the impacts the development may cause, the scientific uncertainty or the merits of the project. It was a judicial review, which is confined to whether the law was applied correctly. ALEC was supported by the wonderful environmental lawyers at the Environmental Defenders Office.
The groundwater licence was also challenged by Mpwerempwer Aboriginal Corporation, representing Native Title Holders, who were legally represented by the Central Land Council. Our court case was heard in 7,8,9 and 26 September 2022.
A decision was handed down on 31 January 2024 where both ALEC and Mpweremepwer Aboriginal Corporation were unsuccessful on all ground. Due to compounding risks associated with taking a case to the Northern Territory Court of Appeals, ALEC did not appeal the decision. Mpwerempwer Aboriginal Corporation did take this decision to the Court of Appeal and this case is ongoing in 2024.
ALEC's legal team, represented by the Environmental Defenders Office with some of the ALEC staff and board
Aftermath
A major implication from the court case is the status and role of a water allocation planning in the Northern Territory. Water plans nationally as per the National Water Initiative are meant to be legally binding and enforceable. This decision in the Northern Territory Supreme Court outlines that this is not the case in the Territory where water plans only need to be "taken into account" when water licence decisions are made.
The court found that "the Minister did not have a statutory obligation to “comply with” s 22B(4) of the Act’. The court also found that ‘planning and management of the water resource in a water control district was and remains the meaning of ‘water resource management’.
Reasons to be hopeful
What was ALEC’s case?
ALEC had three grounds.
Ground 1: Licence decision was not in accordance with the water allocation plan
Legal versionThe Purported Decision involved a jurisdictional error in that the First Defendant failed to comply with s 22B(4) and, further and in the alternative, s 90(1)(ab).
What does that mean? Section 22B(4) of the Water Act says ‘water resource management in a water control district is to be in accordance with any water allocation plan declared in respect of the district'.
Water resource management is not defined in the Act. ALEC argued that ‘water resource management' must include water licensing decisions. NTG argued that water resource management does not include water licensing.
That is then, that the Singleton licence within the Western Davenport Water Control District is to be in accordance with the Western Davenport Water Allocation Plan 2018-2021.
The Western Davenport Water Allocation Plan 2018-2021 had limits to groundwater depletion to manage impacts to groundwater dependent ecosystems. The granting of the Singleton water licence results in those limits being exceeded. Therefore, the granting of the licence is not in accordance with the Western Davenport WAP.
Essentially that the rules of the WAP which is a legal document where not adhered to in the granting of the Singleton licence, making the decision unlawful.
Our counsel argued that there is a harmonious legal construction between s22B(4) and s90(1)(ab), where the consideration of the water allocation plan must also ensure that the granting of the licence is in accordance with the WAP. While the NTG and Fortune Argued that a water allocation plan must merely be considered, that is all that must be done.
Ground 2: Defferal of mandatory considerations
Legal version: The Purported Decision involved a jurisdictional error because the Licence was granted subject to conditions under s 60(2) of the Act which operated to defer consideration of matters which, for the decision to have been lawfully made pursuant to s 30(3)(a)(ii) of the Act, were required to be determined prior to, or in the course of, making the Purported Decision.
What does this mean?
In the granting of the water licence, the Minister imposed a number of conditions precedents that deferred mandatory considerations that are fundamental to the issuing of water licences, such as assessments of the water resource, mapping of GDEs, modelling to substantiate impacts on groundwater, borefield design, cultural values and salinity impacts.
Instead, these matters are deferred to a point later in time.
For example, as is evident from Condition Precedent 9 and Condition precedent 10, the Minister granted the licence to take water at a point when she had not even received the results of “a program to assess the Water Resource on the Land” or “reference points to be used in modelling the impacts of groundwater extraction under this licence on the identified Aboriginal cultural values”.
GROUND 3: LEGAL UNREASONABLENESS
Legal version: The Purported Decision was legally unreasonable.
What does that mean?
Legal unreasonableness is a high threshold. Literally means to be successful, that the decision was so unreasonable, that any reasonable person in the position of the decision maker (in this case the Environment Minister) could not have made that same decision to award the licence to Fortune Agribusiness.
