Federal Court of Australia

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

ORDERS

BY CONSENT OF THE APPLICANT AND THE FIRST TO THIRD RESPONDENTS, THE COURT DECLARES THAT:

1.    The Water (Accredited Water Resource Plan – NSW Murray-Darling Basin Fractured Rock) Instrument 2022 (Cth) is invalid and of no effect for failure to comply with s 63(5) of the Water Act 2007 (Cth).

BY CONSENT OF THE APPLICANT AND THE FIRST TO THIRD RESPONDENTS, THE COURT ORDERS THAT:

2.    The decision of the second respondent to accredit the NSW Fractured Rock Water Resource Plan be quashed and be remitted to the second respondent for reconsideration in accordance with law.

THE COURT ORDERS THAT:

3.    The proceeding otherwise be dismissed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant is the Murray Lower Darling Rivers Indigenous Nations (also known as MLDRIN), a not-for-profit Australian public company limited by guarantee. It represents a confederation of several First Nations from the lower Murray-Darling Basin and is recognised by the respondents as a peak representative organisation for some of those First Nations. Another similarly recognised peak body is the Northern Basin Aboriginal Nations (NBAN).

2    The first three respondents are, respectively, the Commonwealth of Australia, the Commonwealth Minister for the Environment and Water and the Murray-Darling Basin Authority established under s 171 of the Water Act 2007 (Cth). They are referred to as the “Commonwealth respondents” and are the only active respondents.

3    The fourth respondent is the State of New South Wales. It is one of five “Basin States”, comprising also the three States of Queensland, South Australia and Victoria and the Australian Capital Territory, within whose borders the Murray-Darling Basin is located. NSW has filed a submitting notice.

4    The proceeding concerns the NSW Murray-Darling Fractured Rock Water Resource Plan (FRWRP) which is a required resource management plan within the overall suite of interrelated plans and instruments by which the Authority manages the Murray-Darling Basin water resources under the Water Act.

5    Relevantly for present purposes, by letter dated 14 June 2022, the NSW Minister for Lands and Water submitted a proposed NSW Murray-Darling FRWRP to the Authority and requested that it give the plan to the Minister for accreditation. There followed three sequential statutory steps, each of which the applicant challenges and seeks a remedy in respect of (declaration and/or quashing):

(1)    The recommendation by the Authority on 21 October 2022 to the Minister that she should accredit the proposed NSW Murray-Darling FRWRP;

(2)    The Minister’s decision on 15 November 2022 to accredit the FRWRP under s 63(5) of the Water Act; and

(3)    The legislative instrument that resulted, being the Water (Accredited Water Resource Plan – NSW Murray-Darling Basin Fractured Rock) Instrument 2022 (Cth).

6    The Commonwealth respondents have conceded the relief in respect of steps 2 and 3, the Minister’s decision and the instrument, leaving only the challenge to the recommendation by the Authority to be substantively dealt with.

The Minister’s decision and the legislative instrument

7    It is just as well to deal first with the parties’ agreement that the accreditation decision by the Minister and the legislative instrument that followed be, respectively, set aside and declared to be invalid and of no effect. The agreed basis for that relief is the following as set out in a document jointly provided to the Court:

a.    Pursuant to s 63(5) of the [Water Act], in determining whether or not to accredit the FRWRP, the Minister was required to consider the proposed water resource plan and the recommendations given to her by the Authority under s 63(3) (Authority’s recommendations).

b.    While the Minister had before her a range of material including the Authority’s recommendations and a brief of material prepared by her Department, for the purposes of this proceeding, she is taken to have admitted that she did not have a copy of the FRWRP before her (see Applicant’s submissions [79]-[89]).

c.    As the Minister is taken to have admitted that she did not have a copy of the FRWRP before her, and the briefing material did not purport to provide a complete summary of the contents of the FRWRP, the Minister concedes that in making the Accreditation Decision she failed to comply with s 63(5) of the Water Act and that the decision should therefore be set aside.

8    I am satisfied that the Minister’s decision and hence the resultant legislative instrument suffer from the identified deficiency and that that justifies and requires the relief in relation to them that the parties seek by consent. I will make orders accordingly.

9    The remainder of these reasons deal with the applicant’s claim for relief in respect of the Authority’s recommendation to the Minister.

The applicant’s case in broad outline: three issues

10    The parties agree that the three issues for determination are the following (as jointly recorded at CB89).

11    The first issue is identified with reference to [32(a)] of the further amended statement of claim (FASOC) and is posed as follows:

Was the [Authority’s] decision to recommend accreditation of the Water Resource Plan (under s 63(3) of the Water Act) invalid because the Water Resource Plan, and supporting Materials, did not demonstrate consistency between the Water Resource Plan and the Basin Plan in respect of consultation with First Nations under the Basin Plan?

12    In order to more fully understand the basis on which that issue arises, it is necessary to pay some attention to the FASOC. Doing the best that I can with an extraordinarily complicated pleading with definitions within definitions within further definitions, the basis to the first issue is constituted by the contention that the Authority’s accreditation recommendation was not lawfully made because the proposed FRWRP in respect of which it was made was not consistent with the Basin Plan in that:

(1)    the objectives of Indigenous peoples in relation to managing the water resources of the water resource plan area and the outcomes for the management of the water resources of the water resource plan area desired by Indigenous people were not identified for the Tati Tati and Barkandji Nations as required by s 10.52(1) of the Basin Plan 2012 (Cth) (FASOC [32(a)(i)] read with [14A(a)] and [14(c)]); and

(2)    the FRWRP did not demonstrate that the requirement under s 10.52(2) of the Basin Plan for NSW to have regard to Indigenous values and Indigenous uses as determined through consultation with relevant Indigenous organisations was satisfied with respect to the Tati Tati and Barkandji Nations (FASOC [32(a)(ii)] read with [14A(b)], [14(a)] and [14(f)]).

13    The second issue is identified with reference to [32(a)(ii)(3)] of the FASOC and is posed as follows:

Was the Authority’s decision to recommend accreditation of the Water Resource Plan invalid because the Water Resource Plan, and supporting Materials, did not demonstrate consistency between the Water Resource Plan and the Basin Plan in respect of a specific requirement of the Basin Plan to consult with relevant Indigenous Organisations on native title rights and claims?

14    The underlying contention to the second issue is that the requirement under s 10.53(1)(a) of the Basin Plan for a water resource plan to be prepared having regard to the views of relevant Indigenous organisations with respect to native title rights and claims in relation to the water resources of the water resource plan area was not satisfied. That is said to be because the Basin State precluded itself from having regard to the views of 21 relevant Indigenous organisations, being First Nations that had not lodged a native title application or received a determination in relation to native title rights and/or native title claims (FASOC [32(a)(ii)(3)] read with [14(e)]).

15    The third issue is identified with reference to [32(b)] of the FASOC and is posed as follows:

Was the Authority’s decision to recommend accreditation of the Water Resource Plan invalid because the passages of the documents referred to in the particulars to paragraph 31A of the Statement of Claim disclose reasoning that was legally unreasonable?

16    The underlying contention is that the conclusion reached by the Authority that the proposed FRWRP should be recommended for accreditation was founded on an incorrect understanding of the statutory functions of the Authority and the Authority asked itself the wrong question and failed to ask the correct question. Two errors are said to have been made by the Authority:

(1)    First, it is contended that the decision was based on a consideration of whether it was “fair” for the Basin State to meet adverse advice contained in a report dated 31 August 2022 provided by the applicant to the Authority on the proposed FRWRP (the MLDRIN Report) (FASOC [31A(a)]); and

(2)    Secondly, it is contended that the decision was based on statements by the Basin State in the proposed FRWRP that it would provide opportunities for future consultation with some of the relevant Indigenous organisations for whom consultation reports had not been included in the proposed FRWRP and could in the future incorporate the relevant content in the FRWRP (FASOC [31A(b)]).

A little history

17    The Murray-Darling Basin extends from central Queensland through NSW, the ACT and Victoria to eastern South Australia. The Basin is the largest catchment area in Australia, consisting of 23 river valleys and over 77,000 kilometres of watercourses, spanning an area of over a million square kilometres. Its importance is captured in this way in the report of the South Australian Murray-Darling Basin Royal Commission (see Walker BW, Murray-Darling Basin Royal Commission Report (29 January 2019) at 79, henceforth, the MDBRC Report) (footnotes omitted):

Over two million people live in the Basin, and more than three million people in total depend upon it for water. There are over 40 Aboriginal nations within the Basin, who comprise 15% of Australia’s population of Aboriginal people. Forty percent of all farms in Australia are located within the Basin, and they contribute approximately $22 billion to the national economy. Nearly all of Australia’s rice and cotton and 80% of Australia’s grapes are grown in the Basin. Tourism contributes a further $8 billion. Agricultural industries in the Basin employ 45% of agricultural workers in Australia.

18    Since European settlement, the legal regulation of the water resources in the Basin has been contentious. In the 19th century, the colonies of NSW, Victoria and South Australia often feuded over riparian rights and the right to take and use water from the Basin (Clark S, “The River Murray Question: Part 1 – Colonial Days” (1971) 8(1) Melbourne University Law Review 11 at 14-26). It became a key issue in the debates leading to Federation and the drafting of the Constitution (at 31-36), ultimately captured in the wording of s 100 of the Constitution, limiting the operation of ss 51(i) and 98. In this context, Alfred Deakin commented that the diversion of Murray waters was “probably the most complex – I might also say the most obscure – part of the whole Constitution”: Australia, House of Representatives, Debates (1902) Vol 41, p 16,677.

19    From Federation, the relations of the Basin States with respect to water were managed primarily through inter-governmental agreements: Kelly N, “A Bridge? The Troubled History of Inter-State Water Resources and Constitutional Limitations on State Water Use” (2007) 30(3) UNSW Law Journal 639 at 640. The agreements were all shaped and constrained by the federal system laid out in the Constitution. The constraints attracted increased political scrutiny over time as the management of water resources became ever-more important: see Kildea P and Williams G, “The Constitution and the management of water in Australia’s rivers” (2010) 32(4) Sydney Law Review 595 at 595-596.

20    In 2007, the Commonwealth intervened with its legislative powers for the first time with the enactment of the Water Act, which represented a departure from the strictly cooperative model. The Commonwealth failed to obtain a referral of State power via s 51(xxxvii) of the Constitution, and the Water Act was enacted in reliance instead on what has been described as a “hotch-potch” of federal power: Kildea and Williams at 605. The Act set down a “detailed regime” for a national approach to water resource management, with limits on Basin States set down by the Commonwealth: Kildea and Williams at 599, 602. In July 2008, the Basin States entered into the Intergovernmental Agreement on Murray-Darling Basin Reform and referred powers to the Commonwealth to pass major amendments to the Water Act in the Water Amendment Act 2008 (Cth). Five years of consultation with and amongst the Basin States occurred before the first approved Basin Plan was published in 2012.

21    This potted history contextualises, as will be described below, the complex regulatory structure imposed on the water resources of the Basin, and, in particular, the manner in which water resource plans originating from the Basin States are referred upwards for approval by the Commonwealth Minister in accordance with the Basin Plan.

The statutory scheme

The Water Act 2007

22    Sections 9 and 9A of the Water Act identify the purported constitutional basis for the Act. In customary fashion, numerous heads of power drawn from s 51 of the Constitution are listed. The various Parts of the Act identified in s 9A, which were introduced into the Act by amendment, are based principally on the conferral by the relevant States of power under s 51(xxxvii) described above in these reasons. The remainder of the Act, and in particular Pt 2 which is the Part with which this case is mainly concerned, finds its source of power principally in the external affairs power in s 51(xxix): Lee v Commonwealth [2014] FCAFC 174; 229 FCR 431 (Lee FCAFC) at [135]-[136] per Middleton, Barker and Griffiths JJ. See also the discussion in MDBRC Report at 107-110.

23    Section 3 of the Water Act sets out its lofty objectives. These include: to enable the Commonwealth, in conjunction with the Basin States, to manage the Basin water resources in the national interest; to promote the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes; to ensure the return to environmentally sustainable levels of extraction for water resources that are overallocated or overused; and to improve water security for all uses of Basin water resources.

24    In s 4, as mentioned, “Basin State” is defined to mean NSW, Victoria, Queensland, South Australia and the ACT.

25    Part 2 deals with the “Management of Basin water resources”.

Requirements for the Basin Plan

26    Within Pt 2, Div 1 deals with the Basin Plan.

27    Section 19(2), in the “Simplified outline”, explains that there is to be a Basin Plan for the management of the Basin water resources. The Basin Plan will provide for limits on the quantity of water that may be taken from the Basin water resources as a whole and from the water resources of each water resource plan area (the NSW fractured rock water resource plan area is one such area). The development of the Basin Plan is rightly considered to be the “central concept” of the Water Act: Lee FCAFC at [33].

28    Section 20 states that the purpose of the Basin Plan is to provide for the integrated management of the Basin water resources in a way that promotes the objects of the Act, “in particular by providing for … (f) requirements that a water resource plan for a water resource plan area must meet if it is to be accredited or adopted under Division 2”. Significantly, that provision deals with the requirements for a water resource plan to be “accredited or adopted” – it does not require provision for requirements for a proposed water resource plan that is the subject of a recommendation by the Authority.

29    Section 21 deals with the general basis on which the Basin Plan is to be developed. It includes high level policy aspirations such as to promote: sustainable use of the Basin water resources to protect and restore the ecosystems, natural habitats and species that are reliant on the Basin water resources and to conserve biodiversity; the wise use of all the Basin water resources; and the conservation of declared Ramsar wetlands in the Murray-Darling basin.

30    Section 22 is headed “Content of Basin Plan”. Subsection (1) deals with the “Mandatory content of Basin Plan”. It provides that the Basin Plan must include the matters set out in the table. Item 2 of the table identifies one of those matters to be “water resource plan areas”. Item 6 identifies another to be the “maximum long-term annual average quantities of water that can be taken on a sustainable basis” from the Basin water resources as a whole and “the water resources, or particular parts of the water resources, of each water resource plan area”. Such averages are referred to as the “long-term average sustainable diversion limits”, or SDLs, for each resource.

31    Item 11 of the table identifies that a matter that must be included in the Basin Plan is “[t]he requirements that a water resource plan for a water resource plan area must comply with for it to be accredited or adopted under Division 2”. Again, the requirements with respect to a water resource plan for accreditation or adoption must be identified, and not with respect to a proposed a water resource plan for recommendation by the Authority.

32    Section 22(3) provides that the requirements referred to in item 11 of the table for a water resource plan for a water resource plan area “must include requirements in respect of” a list of specified matters. Paragraph (b) specifies the incorporation and application of the long-term annual diversion limit for the water resources for the water resource plan area. Paragraph (ca) specifies a requirement with regard to social, spiritual and cultural matters relevant to Indigenous people in relation to the water resources of the water resource plan area “in the preparation of the water resource plan”. That paragraph was introduced by the Water Amendment (Review Implementation and Other Measures) Act 2016 (Cth) at Sch 1 cl 22 with effect from 5 May 2016. The Explanatory Memorandum to the Water Amendment (Review Implementation and Other Measures) Bill 2015 (Cth) which became the amending Act, explains (at [42]) that para (ca) is intended to acknowledge the existing water resource plan requirements in Pt 14 of Ch 10 of the Basin Plan, being with respect to Indigenous values and uses, and therefore no consequential changes to the Basin Plan would be required.

33    It can be seen that the water resource plan areas constitute the various areas, including subterranean areas, of the Basin and that the water resource plans for each of those areas form a critical underpinning to the Basin Plan and to its success in achieving its purpose as specified in s 20.

34    Section 33(1) provides that the Basin Plan is a legislative instrument which is taken to be made by the Minister on the day on which the Minister adopts the plan under s 34. Section 34(1) then provides that the Authority and the other agencies of the Commonwealth must perform their functions and exercise their powers consistently with, and in a manner that gives effect to, the Basin Plan. That is to say, as a legislative instrument the Basin Plan has the force of law.

Requirements for water resource plans

35    Division 2 of Pt 2 deals with “Water resource plans for particular water resource plan areas”. In the simplified outline in s 53 it is made clear that the Minister may either “accredit a water resource plan that is prepared by a Basin State for the water resource plan area” (subs (3)) or “adopt a water resource plan that is prepared by the Authority for the water resource plan area” (subs (4)) (emphasis added). This case concerns the accrediting of a plan referred to in s 53(3).

36    Subdivision B deals with “Water resource plans”.

37    Within Subdiv B, s 54(1) provides that there is to be a water resource plan for each water resource plan area. The note to that subsection states, with reference to item 2 of the table in s 22(1), that the water resource plan areas are identified in the Basin Plan. Section 54(2) provides that the water resource plan must be one that the Minister either “accredits” under s 63 or “adopts” under s 69. As mentioned, this case concerns accreditation under s 63.

38    Section 55 is a critical section for the applicant’s case and for that reason bears being extracted in full:

55     Content of water resource plan

(1)     A water resource plan for a water resource plan area must provide for the management of the water resources of the water resource plan area.

(2)     The water resource plan must be consistent with the relevant Basin Plan, including:

(a)     the requirements for water resource plans; and

(b)     any long-term annual diversion limit for the water resources of the water resource plan area (or for a particular part of those water resources).

The relevant Basin Plan for the water resource plan is the version of the Basin Plan that the Minister applies in relation to the water resource plan under subsection 56(2).

(3)     In determining whether the water resource plan is consistent with the relevant Basin Plan, regard must be had to the legislative framework within which the water resource plan operates.

39    As will be seen, in respect of the first and second issues identified above, the applicant relies in particular on the provision in s 55(2) that a water resource plan “must be consistent with the relevant Basin Plan”.

40    Section 56(1) is also particularly pertinent to the case:

56     General basis for accrediting and making water resource plans

Matters to which Authority and Minister are to have regard

(1)     In exercising their powers, and performing their functions, under this Division in relation to a water resource plan for a water resource plan area, the Authority and the Minister must have regard to:

(a)     the Basin Plan; and

(b)     the extent to which the water resource plan is consistent with the Basin Plan.

41    On the flip side of the case, in respect of the first and second issues the respondents rely in particular on the provision in s 56(1) that the Authority must have regard to “the extent to which the water resource plan is consistent with the Basin Plan”. Thus, the first and second issues turn in significant part on the resolution of the relationship between the apparent strict and relative requirements of ss 55(2) and 56(1) respectively.

42    Section 56(3) provides that in exercising a power, or performing a function, under Div 2 in relation to a water resource plan for a water resource plan area, the Minister must have regard to the advice that the Authority gives the Minister in relation to the exercise of that power or the performance of that function.

43    Subdivision C – “Effect of a water resource plan” – is not immediately relevant.

44    Subdivision D deals with “Accrediting water resource plans prepared by Basin States”, in contrast to Subdiv E which deals with “Water resource plans prepared by Authority and adopted by the Minister”. In respect of the former, a Basin State initiates the process towards accreditation. In respect of the latter, the Minister initiates the process towards adoption. As mentioned, this case concerns the former process, ie the accreditation process.

45    Within Subdiv D, s 63(1) provides that a Basin State may give the Authority a proposed water resource plan for a water resource plan area that is located within the Basin State and ask the Authority to give it to the Minister for accreditation.

46    Section 63(3) provides that the Authority must:

(a)     consider the proposed water resource plan; and

(b)     prepare recommendations for the Minister on whether the proposed water resource plan should be accredited; and

(c)     give the Minister the proposed water resource plan and the recommendations.

47    Section 63(4) provides that the Authority must not recommend that the Minister not accredit the proposed water resource plan unless the Authority gives the Basin State notice of the grounds for such a recommendation and the opportunity to make submissions in relation to those grounds.

48    Section 63(5) provides that if the Authority gives the Minister a proposed water resource plan and recommendations under subs (3), the Minister:

(a)     must consider the proposed water resource plan and the recommendations; and

(b)     may either:

(i)     accredit the plan; or

(ii)    not accredit the plan.

49    Section 63(6) provides that the Minister “must accredit the plan if the Minister is satisfied that the plan is consistent with the relevant Basin Plan”.

50    Section 63(7) provides that the decision by the Minister to accredit, or not to accredit, the plan must be made in writing and is a legislative instrument.

51    Section 63(8) provides that if the Minister’s decision to accredit or not to accredit a proposed water resource plan under subs (5) does not follow a recommendation that the Authority gives the Minister under subs (3), the Minister must cause a copy of a statement that sets out the Minister’s reasons for not following the Authority’s recommendation to be laid before a House of the Parliament when the Minister’s decision is laid before that House under the Legislation Act 2003 (Cth).

52    For completeness, Subdiv E deals with water resource plans prepared by the Authority and adopted by the Minister. Section 68 provides for a process by which the Minister may request the Authority to prepare a water resource plan for a water resource plan area, and s 69 provides for the Minister’s adoption of such a water resource plan. However, the process initiated by s 68, known as the “step-in power” (s 72(2)), can only occur following the completion of certain procedures prescribed in Div 3 of Pt 2 including negotiation and, if applicable, mediation (s 72(1)).

The Basin Plan 2012

53    The Explanatory Statement to the Basin Plan explains (at 1) that the Basin Plan provides a high-level framework that sets standards for the Australian Government, Basin States and the Authority to manage the Murray-Darling Basin’s water resources in a coordinated and sustainable way in collaboration with the community. It is based on managing Basin water resources in the national interest rather than on jurisdictional or sectoral based views. The Explanatory Statement states (at 7) that the Basin Plan aims to ensure “Indigenous people are able to participate in water resource planning and management and that their values, aspirations and views about the impacts of various decisions are fully considered”.

54    Section 3.05 identifies and names 14 water resource plan areas in respect of surface water, and s 3.06 identifies and names 14 water resource plan areas in respect of groundwater. One of the latter areas is the area with which this case is concerned, namely the NSW Murray-Darling Basin fractured rock water resource plan area.

55    Chapter 10 of the Basin Plan deals with “Water resource plan requirements”. In s 10.01(2), in the “Simplified outline”, it is stated that Ch 10 sets out requirements in relation to the following matters “that a water resource plan must comply with in order for it to be accredited or adopted”. Again, the requirements are not said to apply to a proposed water resource plan that is the subject of a recommendation by the Authority. Section 10.01(2)(m) identifies that one matter in respect of which there are requirements, contained in Pt 14, is “Indigenous values and uses”. There is otherwise a long list of matters in relation to which requirements are set.

56    Section 10.07(1) of the Basin Plan provides that a water resource plan prepared by a Basin State “must contain a description of the consultation in relation to the plan (including in relation to any part of the plan), if any, that was undertaken before the State gave the plan to the Authority” under s 63(1) of the Water Act.

57    Part 12 concerns the information used to prepare water resource plans. Section 10.49 provides that a water resource plan “must be based on the best available information” and that it “must identify and describe the significant sources of information on which [it] is based”.

58    Turning now to Pt 14, the note at the commencement of the Part states that “[i]f a water resource plan is prepared by a Basin State, it is expected that the Authority will consult with relevant Indigenous organisations in relation to whether the requirements of [the] Part have been met, for the purposes of paragraph 63(3)(b) of the Act”. It will be recalled that that paragraph requires the Authority to prepare recommendations for the Minister on whether the proposed water resource plan should be accredited. It is pursuant to that note that the Authority first contracted NBAN and subsequently the applicant to advise it on whether the requirements of Pt 14 of the Basin Plan were met by the proposed FRWRP.

59    The applicant’s case turns, in particular, on ss 10.52 and 10.53 which provide as follows:

10.52 Objectives and outcomes based on Indigenous values and uses

(1)    A water resource plan must identify:

(a)    the objectives of Indigenous people in relation to managing the water resources of the water resource plan area; and

(b)    the outcomes for the management of the water resources of the water resource plan area that are desired by Indigenous people.

(2)    In identifying the matters set out in subsection (1), regard must be had to:

(a)    the social, spiritual and cultural values of Indigenous people that relate to the water resources of the water resource plan area (Indigenous values); and

(b)    the social, spiritual and cultural uses of the water resources of the water resource plan area by Indigenous people (Indigenous uses);

as determined through consultation with relevant Indigenous organisations, including (where appropriate) the Murray Lower Darling Rivers Indigenous Nations and the Northern Murray-Darling Basin Aboriginal Nations.

(3)    A person or body preparing a water resource plan may identify opportunities to strengthen the protection of Indigenous values and Indigenous uses in accordance with the objectives and outcomes identified under subsection (1), in which case the opportunities must be specified in the water resource plan.

10.53 Consultation and preparation of water resource plan

(1)    A water resource plan must be prepared having regard to the views of relevant Indigenous organisations with respect to the matters identified under section 10.52 and the following matters:

(a)    native title rights, native title claims and Indigenous Land Use Agreements provided for by the Native Title Act 1993 in relation to the water resources of the water resource plan area;

(b)    registered Aboriginal heritage relating to the water resources of the water resource plan area;

(c)    inclusion of Indigenous representation in the preparation and implementation of the plan;

(d)    Indigenous social, cultural, spiritual and customary objectives, and strategies for achieving these objectives;

(e)    encouragement of active and informed participation of Indigenous people;

(f)    risks to Indigenous values and Indigenous uses arising from the use and management of the water resources of the water resource plan area.

Note:    For examples of the principles that may be applied in relation to the participation of Indigenous people, see the document titled ‘MLDRIN and NBAN Principles of Indigenous Engagement in the Murray-Darling Basin’.

(2)    In this section, registered Aboriginal heritage means Aboriginal heritage registered or listed under a law of a Basin State or the Commonwealth that deals with the registration or listing of Aboriginal heritage (regardless of whether the law deals with the listing of other heritage).

Factual overview

60    The hearing proceeded on an agreed statement of facts and chronology, a supplementary statement of agreed facts and a substantial documentary tender. There was one affidavit, of Nadja Zimmerman dated 8 February 2025, which is of limited significance. Ms Zimmerman was not required for cross-examination.

61    After a round of consultations with First Nations for the purpose of its then proposed water resource plans covering all surface and groundwater resources across the State, NSW initially sought to have a water resource plan for the fractured rock water resource plan area accredited in 2020 by giving it to the Authority under s 63(1) of the Water Act. In accordance with the note at the commencement of Pt 14 of Ch 10 of the Basin Plan (detailed at [58] above), the Authority sought advice from NBAN as to whether the requirements, particularly of Pt 14, had been met by the proposed plan. NBAN made a number of criticisms of the then proposed plan, whereafter NSW withdrew the proposed plan.

62    As mentioned at the outset, on 14 June 2022, NSW provided a revised version of the FRWRP to the Authority for accreditation. It identified that the FRWRP area is located within the traditional lands of, and is significant to, 29 Indigenous Nations and Traditional Owners including, relevantly, the Tati Tati and Barkandji Nations.

63    The FRWRP area covers the entire NSW portion of the Murray-Darling Basin. The larger portion of the fractured rock systems is buried and forms the basement for the overlying porous rocks and alluvial groundwater resource units covered in other water resource plans. Collectively the FRWRP area covers 597,926 square kilometres with the basement geology extending laterally beneath both the alluvial and porous rock groundwater resource units. The groundwater resources of the FRWRP area include all of the groundwater stored within the fractures, joints, bedding planes, faults and cavities within the rock mass. It also includes alluvial sediments that overlie the fractured rock that have not been separately mapped out and incorporated into other water resource plans.

64    On 14 July 2022, the Authority sought the advice of the applicant (pursuant to the note at the commencement of Pt 14 of the Basin Plan) as to whether the requirements of Pt 14 had been met for the proposed FRWRP. The applicant undertook this assessment pursuant to a contract with the Authority.

65    On 31 August 2022, the applicant provided advice to the Authority in the form of the MLDRIN Report. The advice was critical of the proposed FRWRP in certain respects. In particular, the advice stated that the FRWRP “fulfils none of the 13 requirements listed in Chapter 10, Part 14 of the Basin Plan”. This was principally because the “consultation underpinning the WRP’s development” meet none of the Authority’s assessment criteria to a satisfactory degree. The applicant recommended that the FRWRP not be recommended by the Authority for accreditation. I will return to this aspect in more detail.

66    On 21 October 2022, there was a meeting of the Authority. Agenda Item 12 was “Recommendation for the proposed NSW Murray-Darling Basin Fractured Rock (groundwater) water resource plan”. It was supported by a Recommendation Memorandum of five pages and six attachments. The minutes of the meeting record the Authority:

(1)    Noted that a package of materials was presented comprising:

(a)    the proposed FRWRP;

(b)    a draft assessment report;

(c)    a planned environmental water report;

(d)    the MLDRIN Report;

(e)    a draft recommendation to the Minister on the accreditation of the proposed FRWRP; and

(f)    a draft letter from the Chief Executive (of the Authority) to the Minister.

(2)    Considered the proposed FRWRP, the draft assessment report and the draft recommendation to the Minister on the accreditation of the proposed FRWRP in accordance with s 63 of the Water Act;

(3)    Noted the key issues identified in the draft assessment report;

(4)    Approved the draft assessment report and the draft recommendation to the Minister on accreditation of the proposed FRWRP; and

(5)    By resolution, authorised the Chief Executive to finalise and endorse the draft letter to the Minister providing the proposed FRWRP, the approved assessment report, the planned environmental water report, the MLDRIN Report and the approved recommendation.

67    The proposed FRWRP was recorded in the Recommendation Memorandum to comprise 85 documents. Those documents relevantly included what is referred to as the 2022 Plan Central Document with nine schedules (A to I) and an appendix. The Central Document is of considerable importance to the first and second issues in that it records (in its body and in Schedule C being the consultation report with 26 attached First Nations consultation reports) the consultation efforts of NSW. The particulars of what is recorded will be set out in more detail below.

68    By letter dated 24 October 2022, the Authority’s Chief Executive formally submitted the proposed FRWRP to the Minister for accreditation including the Authority’s recommendation to grant accreditation.

69    On 15 November 2022, the then Minister, the Hon Tanya Plibersek MP, accredited the proposed FRWRP. In signing the Ministerial Accreditation Brief, the Minister added a note in manuscript:

Please make clear to the NSW government that their efforts to consult relevant First Nations communities are not good enough. While it seems I have no legal basis to refuse accreditation, NSW should be clear [sic] we expect them to lift their game.

70    On the same day, the Minister made the Water (Accredited Water Resource Plan – NSW Murray-Darling Basin Fractured Rock) Instrument 2022 (Cth).

The first and second Issues: consulting the Tati Tati and Barkandji Nations on Indigenous values and uses / consulting relevant Indigenous organisations on native title rights and claims

The consultation efforts as to Indigenous values and uses

71    The Central Document, after identifying the significance of the FRWRP area to various First Nations (see [62] above), further noted that there were some Nations where consultation or consultation reports were “not complete”. These included the Tati Tati and Barkandji Nations. For the purposes of this proceeding, it is not in dispute that the Tati Tati and Barkandji Nations are “relevant Indigenous organisations” within the meaning of ss 10.52(2) and 10.53(1) of the Basin Plan.

72    With respect to the Tati Tati Nation, it was stated that NSW sought to engage with the Nation via a nominated delegate of the applicant. However, this engagement “was not able to be progressed due to difficulties in maintaining contact with the Tati Tati Nation through the nominated MLDRIN delegate”. Further follow up was undertaken in September 2020 via the applicant’s delegate, but “no response was received to indicate further interest”.

73    With respect to the Barkandji Nation, the Central Document stated that NSW engaged with the Nation through the Barkandji Native Title Group Aboriginal Corporation. However, it was also stated that “NSW will continue to seek further opportunities to consult” with the Barkandji Nation and that the Department would incorporate their “objectives and outcomes for the management and use of water resources of the WRPA based on their values and uses into the WRP at a later date”.

74    Schedule C, being NSW’s consultation report, sheds further light on the extent of engagement. There, it was noted that “[i]nformation relating to the Barkandji … [and] Tati Tati … Nations is not yet included in this Schedule or as an attached report”. The report also noted that “NSW engaged with the Barkandji …. through the Barkandji Native Title Group Aboriginal Corporation, who formally requested that they be consulted directly rather than via MLDRIN or NBAN”. As for the Tati Tati Nation, “[c]onsultation … has not been able to be completed as part of the developing [sic] this WRP”.

75    Chapter 1 of the Central Document set out the Aboriginal values and uses identified, and desired objectives and outcomes for water management developed, as part of consultation with First Nations. These matters were compiled in a list for accreditation for the purposes of s 10.52 of the Basin Plan, and reference was made to the various consultation reports (attached to Schedule C) for each of the Nations. However, no such reports were referred to for either of the Tati Tati or Barkandji Nations. In fact, it was noted again that “NSW will continue to seek further opportunities to consult” with the relevant Nations, and in so doing incorporate objectives and outcomes based on their values and uses at a later date.

76    In this context and at a high level, the MLDRIN Report observed that “four Nations’ objectives [and outcomes] remain unidentified”, giving a score of “Absent” for compliance with s 10.52(1). In the case of the Tati Tati Nation, this was because “consultation did not occur”, whereas in the case of the Barkandji Nation some consultation did occur but the resulting objectives and outcomes were not identified in the FRWRP.

77    Further, the MLDRIN Report gave a score of “Absent” on the criterion of “Appropriate Nations were identified and involved throughout all stages of the water planning process”. This was at least in part because “[t]he text pertaining to the Tati Tati Nation was viewed … as evidence of a failure by NSW to appropriately engage and involve all Nations in the water planning process” and because the incorporation of values and uses of the Barkandji Nation at a later date would necessitate an amendment to the FRWRP.

78    The draft assessment report on the FRWRP prepared by the Authority dated October 2022 (which was then adopted by the Authority in the meeting on 21 October 2022) acknowledged that “the MLDRIN advice finds that numerous Part 14 requirements are not met, including identification of objectives and outcomes” for the Tati Tati and Barkandji Nations. However, the Authority also noted that NSW had committed in the FRWRP to “seek further opportunities to consult” with those Nations “with the aim to finalise the identification of objectives and outcomes based on each Nation’s values and uses for the water resources of the WRP area and to incorporate those objectives and outcomes” into the FRWRP. Consequently, the Authority determined that the “Indigenous values and uses content of the proposed WRP is consistent with the Basin Plan”. Even so, the Authority recognised “more work is needed by NSW to build a stronger relationship with First Nations and to bring consideration of First Nations’ concerns more fully into the NSW water planning and management framework”.

79    Further to this, the assessment report in its specific analysis of Pt 14 requirements commented that the FRWRP omitted consultation reports for either of the Tati Tati or Barkandji Nations, and did not “identify objectives and outcomes for water management based on values and uses of these Nations for the water resources of the WRP area”. For the Barkandji Nation, this “inability to identify” objectives and outcomes was the result of NSW being unable to secure agreement from Barkandji representatives to use the outcomes of consultation in the FRWRP. For the Tati Tati Nation, NSW had sought permission to consider relevant information provided by the Nation to the Victorian Government as part of their water resource plan development, but had not received a response.

The consultation efforts as to native title rights and claims

80    With respect to s 10.53(1)(a) of the Basin Plan, the Central Document noted that “Native Title Services Corporation were contacted as part of WRP consultation activities” and Table 2 of Schedule C contained the outcomes of that consultation. The Schedule C consultation report relevantly stated the following for the s 10.53(1)(a) requirement:

The department decided that it was not appropriate to conduct general discussions about Native Title where a Nation had not lodged an application or received a determination.

It is therefore not considered appropriate for the Nation report to state the details of the discussions. To the extent that Nation participants wished to include issues relating to Indigenous Land Use Agreements and claims under the Native Title Act 1993 in relation to the water resources of the NSW MDB Fractured Rock WRP area, these views are included in respective Nation reports. A letter was sent to NTS Corp to advise them that further consultations on country would occur and seeking advice on how to consult with Native Title group(s).

81    The MLDRIN Report rated the proposed FRWRP’s compliance with s 10.53(1)(a) as “Absent / Partial”. The report noted “[s]ome Nation representatives reported that native title had been touched on during their engagement, but that it was raised by First Nations participants (rather than the consultants or NSW). The handful of participants who had this experience included Nations without native title claims or determinations.” Participants expressed concern about NSW’s approach to consultation on native title where no application or determination was on foot as it could lead to views being omitted from consideration.

82    In the assessment report the Authority on this criterion acknowledged NSW’s qualified approach to native title consultation. Nevertheless, the Authority noted that “views with respect to native title” were set out in various components of the consultation reports attached to Schedule C to the Central Document. This, as well as other supporting materials in the FRWRP, was relied on for the conclusion that “the range of relevant Indigenous organisations was sufficient to enable NSW to understand broadly the views of the Indigenous people of the WRP area”. Although the Authority was aware of the concerns raised by the applicant on this aspect, the Authority considered that the material did “demonstrate regard to views about native title and ILUAs” and that the requirement had been met.

Consideration

83    The applicant principally contends that the incomplete consultation referred to in the documentary evidence above for each of the Tati Tati and Barkandji Nations constituted a failure to comply with the content requirements of s 10.52 in the Basin Plan. More particularly, it is said that because of the failure of the Basin State, NSW, to consult with the Tati Tati and Barkandji Nations there was a failure to have “regard” to the matters in s 10.52(2) in relation to those Nations and hence a failure to “identify” the “objectives” and “outcomes” required by s 10.52(1). It is also said that there was a resultant failure to have “regard” to certain matters as required by s 10.53(1).

84    To similar effect, the applicant contends that the incomplete consultation of Indigenous organisations (including the Tati Tati and Barkandji Nations referred to above), by omitting to consult those who had not been party to a formal native title process, constituted a failure to have “regard” to the views prescribed in s 10.53(1)(a).

85    The failures are said to indicate inconsistency between NSW’s proposed FRWRP and the Commonwealth’s Basin Plan. The applicant submits this inconsistency means the Authority’s decision to recommend accreditation of the FRWRP to the Minister is invalid because a necessary jurisdictional fact for a valid recommendation is that the FRWRP is compliant with the Basin Plan as required by s 55(2) of the Water Act.

86    The Commonwealth respondents deny that there was any non-compliance with respect to the requirements of the Basin Plan, and further say that the requirement of “consistency” does not have the effect of requiring strict “compliance” with each provision of the Basin Plan. In addition, the Commonwealth respondents submit that the Water Act scheme does not pre-condition the Authority’s power to recommend accreditation on satisfaction of consistency or objective consistency with the Basin Plan since the Authority’s role under s 56(1) of the Water Act is to consider the extent of that consistency requiring an evaluative judgement of degree and policy.

87    The Commonwealth respondents accept that the recommendation of the Authority is a necessary step in the process towards the accreditation of a water resource plan by the Minister and it then being made as a legislative instrument. For that reason they accept that the recommendation, although not binding on the Minister, is an administrative act that is subject to judicial review, citing Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 580.

88    These being the arguments on both sides, integral to the success of the applicant’s case is an acceptance by the Court that the requirement of consistency with the Basin Plan is an objective jurisdictional fact enlivening the Authority’s ability to recommend accreditation under the Water Act: see City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [28]. Simply put, the applicant’s argument entails as a fundamental premise that if the FRWRP – as a matter of objective assessment – is not consistent with the Basin Plan, the Authority could not have lawfully recommended it pursuant to s 63(3) of the Water Act, even if it might have reasonably reached a subjective view to the contrary.

89    It is therefore critical to consider whether the legislative scheme has consistency as an objective jurisdictional fact before considering whether there was inconsistency between the FRWRP and the Basin Plan.

90    This requires construction of the provisions in the Water Act, having the fullest regard to the purpose of those provisions, the context in which they lie and the unity of the legislative scheme as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70]-[71]. Within the context of jurisdictional fact analysis, this task has been described as “forming a view as to the place of that provision [or, I interpolate, provisions] within the structure of the Act read in light of its legislative history”: Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; 260 CLR 340 at [48].

91    A helpful explication of the considerations in this process is given in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55, where Spigelman CJ, with whom Mason P and Meagher JA agreed, observed (at [37]-[40]):

The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): ...

Objectivity and “essentiality” are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of “essentiality” will often suggest “objectivity”.

Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes jurisdictional fact as some kind of “doctrine” is, in my opinion, misconceived. The appellation “jurisdictional fact” is a convenient way of expressing a conclusion — the result of a process of statutory construction.

Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

92    The core of the constructional dispute between the parties is the interaction of ss 55(2) and 56(1)(b) of the Water Act (extracted at [38]-[40] above). The former requires that a water resource plan “must be consistent” with the Basin Plan. The latter requires that the Authority in exercising its powers have regard to “the extent to which” the water resource plan is consistent with the Basin Plan. The applicant contends that it is s 55(2) which is the “paramount indicator”, being the “dominant controlling provision” in the Water Act scheme making consistency a precondition to the Authority’s exercise of power to recommend. Conversely, the Commonwealth respondents argue that the wording of s 56(1)(b) suggests that the words “must be consistent” in s 55(2) have a more qualified effect, such that the only express precondition on the Authority is to have regard to the extent of consistency between the FRWRP and Basin Plan. Both sides refer to various surrounding provisions and mechanisms in contending for their respective constructions.

93    Beginning with the key provisions, it is true that s 55(2) mandatorily provides that a “water resource plan must be consistent with the relevant Bain Plan”. Equally mandatorily, s 56(1)(b) provides, on the other hand, that “the Authority … must have regard to … the extent to which the water resource plan is consistent with the Basin Plan”. In the latter provision, it is apparent that the notion of having “regard to the extent to which” contemplates that the water resource plan before the Authority, even after having been prepared subject to the general requirements of s 55(2), might not be strictly consistent. This being the case, the uncertainty that arises is whether it is the role of the Authority to ensure the fulfilment of an absolute requirement of consistency before recommending accreditation – ie if it identifies inconsistency, then it cannot recommend accreditation – or if there is merely an obligation to identify the extent of any inconsistency and take that into account in making its accreditation recommendation decision – ie, if it identifies inconsistency, then it may nonetheless choose to recommend accreditation.

94    For the reasons that follow, I consider the second of these constructions to be the correct one.

95    Pulling together all the legislative provisions set out earlier in these reasons, the process of actions by the three relevant actors that may culminate in a water resource plan being promulgated as a legislative instrument after being accredited by the Minister is straightforward. The steps, in order, are:

(1)    The Basin State: The Basin State may give its proposed water resource plan to the Authority and ask the Authority to give it to the Minister for accreditation (s 63(1)).

(2)    The Authority: If the Basin State gives the Authority a proposed water resource plan under s 63(1), the Authority must consider the proposed water resource plan, prepare recommendations for the Minister on whether the proposed plan should be accredited and give the Minister the proposed plan and the recommendations (s 63(3)). In doing so the Authority “must have regard to” the Basin Plan and the extent to which the water resource plan is consistent with the Basin Plan (s 56(1)). Provision is made for the Basin State to make representations to the Authority in the event that the Authority is inclined to not recommend that the Minister accredit the proposed plan (s 63(4)).

(3)    The Minister: If the Authority gives the Minister a proposed water resource plan and recommendations, the Minister must consider the proposed plan and the recommendations (s 63(5)(a)). In doing so, the Minister also “must have regard to” the Basin Plan and the extent to which the water resource plan is consistent with the Basin Plan (s 56(1)) and further “the advice that the Authority gives the Minister” (s 56(3)). The Minister may either accredit the plan or not accredit the plan (s 63(5)(b)).

96    Notably, although the Minister must accredit the plan if the Minister is satisfied that the plan is consistent with the Basin Plan (s 63(6)), the reverse is not made express. That is to say, there is no provision to the effect that if the Minister is not satisfied that the plan is consistent with the Basin Plan they must not accredit it. However, that result would seem to flow from s 55(2).

97    Two particularly important points to note are, first, that the Authority is not limited in only making a recommendation to the Minister in respect of a proposed water resource plan if the proposed plan is (whether objectively or to the Authority’s satisfaction) consistent with the Basin Plan. That is to say, once a proposed plan is given to the Authority under s 63(1), it “must” then do what it is required to do under s 63(3) as read with s 56(1) and give it to the Minister. Inherent in that arrangement is that the Authority may make a recommendation in relation to a water resource plan that is not (whether objectively or to the Authority’s satisfaction) consistent with the Basin Plan. Naturally, if the Authority is not satisfied as to consistency it will likely recommend that the plan not be accredited. However, its key task is to assess “the extent to which” the plan is consistent with the Basin Plan and advise the Minister accordingly. Also, it is not required to advise the Minister whether the plan is consistent with the Basin Plan.

98    The second point is that if the Minister is “satisfied” that the proposed water resource plan is consistent with the Basin Plan then accreditation of the plan is mandatory. That is a subjective jurisdictional fact.

99    The lesson to be drawn from those two points are that it would be incompatible with the legislative scheme if the Authority could only make a recommendation in respect of a plan that was objectively consistent with the Basin Plan. That incompatibility is with regard to the role of the Authority in assessing the extent of consistency between the proposed plan and the Basin Plan and making a non-binding recommendation to the Minister. It is also incompatible with the requirement at the accreditation stage that the proposed plan be consistent with the Basin Plan only to the satisfaction of the Minister, and not objectively so – it would not make sense to have a strict or objective consistency requirement at the recommendation stage and then a subjective consistency requirement at the accreditation stage because only an objectively consistent plan could reach the accreditation stage making the subjective consistency requirement redundant.

100    This conclusion is compelling when it is further understood that the notion of “consistency” in the Act is a complex evaluative exercise to be performed having regard to both State and Federal legislative regimes. Section 55(3) requires that “[i]n determining whether the water resource plan is consistent with the relevant Basin Plan, regard must be had to the legislative framework within which the water resource plan operates”. That would apply to both the Authority and the Minister in performing their functions under ss 63(3) and 63(5) respectively. As the Commonwealth respondents point out, the Revised Explanatory Memorandum to the Water Bill 2007 (Cth) states (at [104]) that “[w]ater resource plans will operate within the Basin State’s legislative framework” and “[t]he consistency of each water resource plan with the Basin Plan will need to be assessed having regard to the relevant legislative framework”. That legislative framework is complex and multifaceted, including operating at both State and Federal levels.

101    Further, as the Commonwealth respondents also point out, the Water Act specifies numerous requirements for the Basin Plan that are not conducive to bright line rules. An example already referred to is the requirement in s 22(3)(ca) of the Water Act that the requirements in the Basin Plan for a water resource area must include requirements in relation to “having regard to social, spiritual and cultural matters relevant to Indigenous people in relation to water resources of the water resource plan area”. It is hard to imagine that consistency of a water resource plan with such an aspirational policy-laden requirement can be assessed on a “yes” or “no” basis – it will inevitably be a matter of degree. Acknowledging, of course, that the Basin Plan cannot be used to interpret the Water Act, that point is borne out by various provisions of the Basin Plan that express policy aspirations, eg ss 10.05, 10.26, 10.41, 10.49 and, relevantly, the Indigenous “consultation” and “regard” requirements in ss 10.52, 10.53 and 10.54. Indeed, the requirement that there be “consultation with relevant Indigenous organisations” in s 10.52(2) on which the applicant specifically relies in contending for inconsistency between the FRWRP and the Basis Plan is not a requirement that can readily be assessed definitively as having been fulfilled or not – both the “consultation” and “relevant organisations” components involve evaluative assessment.

102    As to a water resource plan’s consistency with those matters, different minds may reasonably arrive at different conclusions, hence the condition in s 63(6) being premised on the Minister’s satisfaction. As noted in Project Blue Sky (at [95]), “[w]hen a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity”. It is unlikely to be the case on the text (nor conducive to the overall purposes of the Water Act scheme leading up to accreditation) that the Authority is unable to enjoy a nuanced capacity to provide an independent recommendation having regard to the material and circumstances before it as a whole, formal inconsistency notwithstanding. It is implausible that the Authority is the only participant in the accreditation process required to reach an objectively correct view on consistency, whether arising from ss 56(1) or 63(3).

103    That point is particularly clear when one compares what is specifically provided for the Authority’s task with the broader provisions of the Water Act. Section 56(1) expressly requires the consideration by the Authority of the extent of consistency; it does not require consideration of whether the relevant water resource plan is consistent. By contrast, the source of the applicant’s contention for strict consistency, s 55(2), does not even deal with what the Authority had to do or consider. It therefore offers a particularly infirm basis to contend that the Authority cannot recommend a plan that has some degree of inconsistency with the Basin Plan.

104    When s 55(2) of the Water Act is understood in the above light, the applicant’s reliance on the mandatory content requirements for water resource plans in s 22(3) of the Water Act and in Ch 10 of the Basin Plan is not to the point. The function of those provisions is to identify the minimum requirements of a water resource plan and thus set out the criteria by which the Authority and the Minister make their assessments of consistency with the Basin Plan. Were those specific mandatory content requirements absent in the legislative scheme the manner in which comparison of consistency against the Basin Plan were to occur would lack definition (although it would not render that exercise impossible).

105    The applicant also refers to the utility of there being judicial review of the Authority’s task on an objective basis available from the Court, as that would advance the scheme of well-informed decision-making, and how there is no public interest that would tend against it. However, notwithstanding that an objective criterion of consistency would have a “rule-like” quality in the Project Blue Sky sense, that is not the construction which the provisions in their full context demand, for the reasons discussed above. Further, it must be noted that the Minister’s state of satisfaction is still capable of being judicially reviewed in the sense of s 39B of the Judiciary Act 1903 (Cth), as the applicant acknowledges in citing Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193; 296 FCR 124 at [110] per Kenny and Mortimer JJ (which considered the term “reasonably satisfied”).

106    On the premise that the only precondition is the Authority’s consideration of the extent of consistency, there is no doubt that the Authority gave due consideration to this. The Authority’s assessment report noted that “the proposed WRP has been assessed against each chapter of the Basin Plan” for consistency, before going on to indicate the existence of broad consistency with each. Further, the content requirements for each provision in Ch 10 of the Basin Plan were considered in particular detail in an annexed table.

107    Even if it is the case that there is an objective jurisdictional fact requirement, an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect – this is the “essentiality” question referred to in Timbarra (quoted at [91] above). A legislative purpose to invalidate a non-compliant act must be discerned, having regard to the language of the statute, its objects and the consequences of voiding the relevant act: Project Blue Sky at [91]. It is unclear what purpose would be served by invalidating the decision of the Authority to recommend accreditation upon a failure to observe the fact-condition of consistency. As already discussed, the Authority must undertake a complex evaluative exercise which is not limited solely to bare consistency with the Basin Plan. There is doubtful utility in holding the issuance of a recommendation on the best available information to be void for any technical inconsistency later found to be the case when the ultimate decision is for the Minister on a state of satisfaction. The better view is that any objective requirement of consistency is a matter going more to administration than validity: Project Blue Sky at [95].

108    For those reasons, the applicant’s challenge to the recommendation decision on the basis as reflected in the first and second issues fails. It is therefore unnecessary to consider whether there was in fact inconsistency between the FRWRP and the Basin Plan with respect to certain requirements vis-à-vis the Barkandji and Tati Tati Nations or for the 21 Indigenous organisations. Even if the proposed water resource plan is objectively inconsistent with the Basin Plan that does not necessarily result in an error by the Authority in making a recommendation to the Minister on the basis of that plan and any such error does not necessarily lead to invalidity. There is otherwise no challenge based on the Authority’s assessment of consistency.

The Third Issue: the Authority’s process of reasoning

The relevant reasoning

109    It will be recalled that there are two issues at stake here. The one is whether or to what extent the Authority utilised a “fairness” test in relation to consistency between the FRWRP and the Basin Plan, in particular with regard to meeting the MLDRIN Report’s identified deficiencies in the FRWRP. The second is whether or to what extent the Authority relied on NSW committing to provide opportunities for future consultation with some of the relevant Indigenous organisations for whom consultation reports had not been included in the FRWRP and could in the future incorporate the relevant content in the FRWRP.

110    The particulars given by the applicant in support of its contentions on these issues, each of which will be documented below, are:

1.     Authority Assessment Report, pp 11, 208 ...

2.     Murray Darling Basin Authority, Meeting 168 – 21 October 2022, Recommendation for the proposed NSW Murray-Darling Basin Fractured Rock (groundwater) water resource plan, pp 8-9.

3.     FRWRP pp. 6, 19, 28.

4.     FRWRP Schedule C Consultation Report, p 13.

111    As mentioned above, NBAN had previously given advice to the Authority on consistency of the 2020 (but subsequently withdrawn) proposed FRWRP. Against that background, in its assessment report, the Authority stated the following (emphasis added):

some of the views set out in the MLDRIN advice state that requirements have not been met for parts of the proposed WRP where the content (e.g. the identified objectives and outcomes) was deemed to meet requirements under previous NBAN advice on the 2020 version of the proposed WRP. Under these circumstances, NSW could not have been expected to have made changes to improve the proposed WRP for these matters if earlier advice confirmed the proposed WRP content was consistent with the Basin Plan.

112    The Authority then went on to say the following:

59.     The Authority is advised that the MDBA [referring to itself] has received correspondence from NSW explaining why Nation Consultation Reports for these First Nations are not available and details are provided in the assessment report below. In response, NSW has committed in the proposed WRP, to seek further opportunities to consult with the Barkandji/Maljangapa, Gomeroi, Tati Tati and Weki Weki Nations with the aim to finalise the identification of objectives and outcomes based on each Nation’s values and uses for the water resources of the WRP area and to incorporate those objectives and outcomes – subject to each Nations’ agreement – into the WRP. The proposed WRP also commits NSW to report back to the MDBA regarding progress within two years of accreditation.

60.     Consequently, and despite the MLDRIN advice suggesting that none of the requirements in Part 14 have been met, this assessment has confirmed that the proposed WRP contains sufficient material to address the requirements and issues raised previously by First Nations in the WRP area. On this basis, the Authority has determined that the Indigenous values and uses content of the proposed WRP is consistent with the Basin Plan.

61.     While the proposed WRP meets requirements, the Authority recognises that more work is needed by NSW to build a stronger relationship with First Nations and to bring consideration of First Nations’ concerns more fully into the NSW water planning and management framework.

62.     In addition to commitments to seek further consultation with those Nations where Nation Consultation Reports could not be incorporated into the proposed WRP, the proposed WRP also commits NSW to further consultation with First Nations people of the WRP area over the coming 12 months to resolve any outstanding concerns in relation to the Indigenous values and uses requirements. Given the concerns raised by MLDRIN, the Authority strongly encourages NSW to make full use of this 12 month commitment to engage with the First Nations people of the WRP area in a culturally appropriate way.

63.     The Authority strongly encourages NSW to adopt the engagement principles of Free, Prior and Informed Consent (FPIC) and the Akwé:Kon Guidelines. These frameworks ensure that Traditional Owners are engaged in an appropriate manner. This includes providing adequate information about the consent process, appropriate time and information.

113    Further, in a schedule to the assessment report where the consistency of the FRWRP with the Basin Plan’s various requirements are individually assessed, the Authority set out an assessment in relation to the s 10.52(1)(b) Basin Plan requirement, expressed in the schedule as “The outcomes of water resource management as desired by Aboriginal people are listed”. After detailing various aspects of its assessment, it extracted the MLDRIN Report advice that “that objectives and outcomes are identified in Nation Reports for all but four Nations (being Barkandji/Maljangapa, Gomeroi, Tati Tait and Weki Weki Nations), and that an explanation for the absence of Barkandji/Maljangapa and Gomeroi objectives and outcomes is not provided in the proposed WRP”. The Authority responded to this as follows:

As noted above, the Authority is satisfied with the reasons provided for the absence of these objectives and outcomes. The advice sets out several overarching concerns from some Nations about the adequacy and completeness of the consultation process and overall endorsement of Nation Reports undertaken by NSW.

The Authority also notes the MLDRIN advice differs from the NBAN advice the Authority sought on the 2020 version of the proposed WRP, which considered this requirement to be “Satisfactory” (on a five‐point rating scale of “Absent” to “Excellent”).

The Authority has considered all material incorporated into the proposed WRP to address this requirement and the MLDRIN advice.

The Authority is satisfied that this requirement has been met.

114    As mentioned, on 21 October 2022, the Authority “approved” the draft assessment report and the draft recommendation to the Minister on accreditation of the proposed FRWRP. The recommendation memorandum put to the meeting of the Authority included the following statements (emphasis added):

19.     The draft assessment report (Attachment B) notes that some of the views set out in the MLDRIN advice state that requirements have not been met for parts of the proposed WRP where the content (e.g. the identified objectives and outcomes) was deemed to meet requirements under previous NBAN advice on the 2020 version of the proposed WRP. Under these circumstances, NSW could not have been expected to have made changes to improve the proposed WRP for these matters if earlier advice confirmed the proposed WRP content was consistent with the Basin Plan.

20.     The MLDRIN advice also comments on the absence of sufficient explanation in the proposed WRP about why Nation Consultation Reports for Barkandji/Maljangapa, Gomeroi, Tati Tati and Weki Weki Nations not being incorporated into the proposed WRP. In the absence of the Nation Consultation Reports or sufficient explanation for their exclusion, the MLDRIN advice finds that numerous Part 14 requirements are not met, including identification of objectives and outcomes for these Nations and hence the proposed WRP is inconsistent with the Basin Plan.

21.     The MDBA has received correspondence from NSW explaining why Nation Consultation Reports for these Nations are not available and details are provided in the assessment report at Attachment B. In addition, NSW has committed in the proposed WRP, to seek further opportunities to consult with the Barkandji/Maljangapa, Gomeroi, Tati Tati and Weki Weki Nations with the aim to finalise the identification of objectives and outcomes based on each Nation’s values and uses for the water resources of the WRP area and to incorporate those objectives and outcomes – subject to each Nations’ agreement – into the WRP. The proposed WRP also commits NSW to report back to the MDBA regarding progress within two years of accreditation.

22.     Finally, with regard to many of the concerns raised in the MLDRIN advice, the proposed WRP also commits NSW to further consultation with First Nations people of the WRP area over the coming 12 months to resolve any outstanding concerns in relation to the Indigenous values and uses requirements.

115    In the Central Document, NSW made a number of references to the State’s commitment to meet its consultation requirements in the future:

NSW is committed to engage with the Weki Weki Nation in the future and continues to review its consultation model and for water management discussions with First Nations.

...

NSW will continue to seek further opportunities to consult with the Barkandji/Maljangapa, Gomeroi/Kamilaroi/Gamilaroi/Gamilaraay, Tati Tati and Weki Weki Nations. Subject to the Nations’ agreement, the department will incorporate the Nations’ objectives and outcomes for the management and use of water resources of the WRPA based on their values and uses into this WRP at a later date. NSW will provide a progress report on this to the MDBA within two years of accreditation of this WRP.

...

NSW is committed to furthering the discussion to meet the requirements of Part 14 of Chapter 10 of the Basin Plan through engaging with Aboriginal people, including Traditional Owners and Aboriginal organisations, over the coming 12 months.

116    In the Schedule C consultation report, NSW stated the following:

NSW will continue to work with these Nations. Subject to their agreement, the department will incorporate the Nation’s objectives and outcomes for their management and use of water resources of the WRPA based on their values and uses in this WRP at a later date. NSW will provide a progress report on this work to the MDBA within two years of accreditation of this WRP.

Consideration

117    In its written submissions, the applicant submits that the Authority’s relevant reasoning “is illogical and irrational and productive of jurisdictional error in substituting for the right and relevant legal test (is the FRWRP consistent with the provisions of the Basin Plan?) different and wrong tests (being (1) should the Basin State in 2022 have to meet additional criticism to that it had received in 2020? and (2) can consistency be reached in the future?)”.

118    Put in that way, the submission fails at the first hurdle. That is because the relevant statutory task for the Authority was to “prepare recommendations for the Minister on whether the proposed water resource plan should be accredited” (Water Act, s 63(3)(b)), and in doing so it was required to “have regard to ... the extent to which the water resource plan is consistent with the Basin Plan” (Water Act, s 56(1)(b)). Contrary to the applicant’s submission, the “legal test” to be applied by the Authority was not “is the FRWRP consistent with the provisions of the Basin Plan?” Indeed, no “test” per se was required or appropriate. The task for the Authority was to make a recommendation in relation to a highly complex and detailed water resource management policy document. That required a commensurately complex and detailed evaluation, not the application of any “test” simpliciter.

119    Also, contrary to the applicant’s submission, the Authority did not apply “tests” by asking the impugned questions, “(1) should the Basin State in 2022 have to meet additional criticism to that it had received in 2020?” and “(2) can consistency be reached in the future?” The statements that the applicant relies on in the voluminous documentary record in which the Authority considers and records its advice form part of detailed discussions leading to an evaluative assessment underpinning the ultimate advice given by the Authority.

120    Taking the question of “fairness” first, the paragraphs from the assessment report that are extracted above (at [111]-[112]) are located in an introductory section of that report before the assessment of consistency with the Basin Plan even commences. They are in a section of the report titled “Key issues” within a sub-section titled “Indigenous values and uses”. They set out relevant background and are not dispositive of any reasoning on the mandatory question being the extent of consistency between the proposed FRWRP and the Basic Plan.

121    The same is true of [19] of the recommendation memorandum also extracted above (at [114]). The “draft assessment report (attachment B)” referred to in the recommendation memorandum is what I have referred to as the assessment report, ie it was attached to the recommendation memorandum in the manner in which that memorandum was presented to the Authority. The assessment of the extent on consistency is set out in the assessment report, the extracted paragraphs of the recommendation merely being by way of background or introduction; they merely summarise aspects of the introductory sections of the assessment report. They disclose no error in the Authority’s reasoning.

122    The relevant assessment of the extent of consistency is in the schedule to the assessment report relevantly extracted above (at [113]). No error is revealed there. The Authority is shown to have engaged in the relevant task of assessing the extent of consistency. In doing so, it made no error in acknowledging the real and practical difficulties faced by the Basin State in engaging in consultations with relevant Indigenous organisations and factored those, and the explanations given for them, into its assessment.

123    Turning now to the question of future commitments of NSW as the Basin State to further consultation, the extracts from the Central Document and the consultation report at Schedule C extracted above (at [115]-[116]) are part of what the Authority was assessing. That is to say, those extracts are statements by NSW as the Basin State. The Authority’s treatment of those statements with regard to NSW’s commitment to future consultation with relevant Indigenous organisations that is relied on by the applicant is in the recommendation memorandum at [20]-[22] (extracted at [114] above).

124    As with the “fairness” issue, what is set out in the recommendation memorandum is essentially by way of background or introduction. Attachment D to the recommendation memorandum is the Authority’s “Recommendation on the accreditation of the proposed NSW Murray-Darling Basin Fractured Rock Water Resource Plan”. It relevantly includes the following (much of which is repetitive of what was included in the assessment report):

2.     The Authority is satisfied that the proposed WRP is consistent with the relevant Basin Plan (Basin Plan 2012 (Cth), version F2021C01067, registered on 27 October 2021 and in force as of the date of the Authority’s recommendation, as is required by section 55(2) of the Act including:

a.     the requirements for water resource plans (‘WRPs’), and

b.     the long-term annual diversion limits (‘SDLs’) for the water resources of the WRP area.

3.     In considering consistency the Authority has had regard to the legislative framework within which the proposed WRP operates, as is required by section 55(3) of the Act.

4.     In exercising its powers and performing its functions, the Authority has had regard to the Basin Plan and the extent to which the proposed WRP is consistent with the Basin Plan (in accordance with sections 56(1)(a) and (b) of the Act).

5.     In addition, in arriving at its recommendation, the Authority has taken into account the following matters.

6.     The Authority sought First Nations advice from Murray Lower Darling Indigenous Nations (MLDRIN) on whether the proposed WRP is consistent with the Basin Plan requirements regarding Indigenous values and uses. In response, advice was provided to the Authority by MLDRIN following a two day workshop with relevant First Nation representatives. The MLDRIN advice notes that the proposed WRP incorporates additional material as compared to the 2020 version of the WRP but that on the whole concludes the proposed WRP does not meet requirements. The advice provided to the Authority by MLDRIN expresses a view that the proposed WRP is not consistent with any of the four requirements relating to Indigenous values and uses.

7.     In part, this advice is based on the fact that consultation outcomes for several First Nations associated with the WRP area could not be completed and therefore these First Nations’ views on particular matters and their objectives and outcomes for management of water resources are not identified in the proposed WRP. The proposed WRP acknowledges these absences and sets out a commitment to seek further opportunities to consult with the relevant First Nations (Barkandji/Maljangapa, Gomeroi, Tati Tati and Weki Weki) with the aim to finalise the identification of objectives and outcomes based on each First Nation’s values and uses for the water resources of the WRP area and to incorporate those objectives and outcomes – subject to each Nations’ agreement – into the WRP. The proposed WRP also commits NSW to report back to the MDBA regarding progress within two years of accreditation.

8.     Consequently, and despite the MLDRIN advice suggesting these requirements have not been met, this assessment has confirmed that the proposed WRP contains sufficient material to address the requirements of the Basin Plan and issues raised previously by First Nations. On this basis, the Authority has determined that the Indigenous values and uses content of the proposed WRP is consistent with the Basin Plan.

9.     While the proposed WRP meets requirements, the Authority recognises that more work is needed by NSW to build a stronger relationship with First Nations and to bring consideration of First Nations’ concerns more fully into the NSW water planning and management framework.

10.     The proposed WRP also commits NSW to further consultation with First Nations people of the WRP area over the coming 12 months to resolve any outstanding concerns in relation to the Indigenous values and uses requirements. Given the concerns raised by MLDRIN, the Authority will strongly encourage NSW to make full use of this 12 month commitment to engage with the First Nations people of the WRP area in a culturally appropriate way.

11.     The Authority strongly encourages NSW to adopt the engagement principles of Free, Prior and Informed Consent (FPIC) and the Akwé:Kon Guidelines when undertaking this further consultation. These frameworks ensure that Traditional Owners are engaged in an appropriate manner. This includes providing adequate information about the consent process, appropriate time and information.

125    From that extract a number of observations can be made. First, the Authority understood its statutory task as framed in terms of consistency of the proposed FRWRP with the Basin Plan (at [2]-[4]). The applicant makes no criticism of what is said there. Secondly, the Authority identified a number of “addition[al]” matters that it took into consideration (at [5]). Thirdly, those included the advice in the MLDRIN Report on whether the proposed FRWRP is consistent with the Basin Plan requirements regarding Indigenous values and uses (at [6]). The Authority acknowledged that the MLDRIN advice was that the FRWRP incorporates additional material as compared to the 2020 version which was withdrawn following the advice of NBAN, and that MLDRIN expressed a view that the FRWRP was not consistent with any of the four requirements relating to Indigenous values and uses (at [6]). Fourthly, the Authority undertook its own assessment which “confirmed that the proposed WRP contains sufficient material to address the requirements of the Basin Plan and issues raised previously by First Nations” (at [8]). On that basis, the Authority concluded that “the Indigenous values and uses content of the proposed WRP is consistent with the Basin Plan” (at [8]). Fifthly, after again recording its view that the FRWRP meets the requirements, the Authority recognised that more work is needed by the Basin State in certain respects and acknowledged the Basin State’s commitments in that regard (at [9]-[10]).

126    That reasoning does not reveal that the Authority was only satisfied as to the requirements because of the potential satisfaction of those requirements in the future. The reasoning discloses that the Authority was satisfied at the time of its decision that the relevant requirements were met, but recognised that more work in respect of First Nations consultations could and should still be done. That form of reasoning is consistent with the requirement that the Authority consider “the extent” of consistency between the FRWRP and the Basin Plan. It also recognises that there is scope in the legislative framework for amendments to be made to the FRWRP in the future.

127    In the latter regard, s 65 of the Water Act provides for the amendment of water resource plans that have previously been accredited under s 63. That is to say, the FRWRP, once accredited by the Minister, can subsequently be amended. That process would allow for future amendment if warranted because of any development in the identification of Indigenous values and uses following further consultations by the Basin State.

128    Further, the Central Document recognised the relationship between the FRWRP and the instruments including the Water Sharing Plan for the NSW Murray Darling Basin Fractured Rock Groundwater Sources Order 2020 (NSW) which was made under ss 45(5A) and 50 of the Water Management Act 2000 (NSW). The Water Sharing Plan is Schedule A to the Central Document. The Central Document acknowledged that the Water Sharing Plan contributes to the FRWRP and “establishes the rules for water sharing” in the nine Murray-Darling Basin fractured rock long-term average SDLs. The Water Sharing Plan can also be amended from time to time as required under s 45(1) of the Water Management Act. Part 12 of the Water Sharing Plan provides for the circumstances in which there may be amendments to it. By cl 69(1)(f), the Water Sharing Plan may be amended to include provisions for the protection of “groundwater-dependent culturally significant areas”.

129    The point is that there was nothing irrational or illogical or otherwise impermissible in the Authority recognising in its reasoning that there may be future developments arising from further consultation efforts by the Basin State because such developments could be taken account of through amendment of the FRWRP itself or one of its underlying or interrelated instruments being the Water Sharing Plan.

130    For those reasons, the applicant fails on the third issue.

Conclusion

131    For those reasons, aside from the relief that is to be ordered by consent, the proceeding must be dismissed. As there was previously an order limiting costs in the proceeding to a maximum of $50 under r 40.51(1) of the Federal Court Rules 2011 (Cth), the parties are agreed that there should be no order as to costs.

Associate:

Dated:    29 August 2025

SCHEDULE OF PARTIES