The Northern Territory Supreme Court has dismissed a legal challenge over whether the NT government acted lawfully when it re-granted one of the largest groundwater licences in Australia's history to the owner of a Central Australian cattle station.
Key points:
- The NT Supreme Court has rejected a case brought by traditional owners and environmental groups over a controversial groundwater licence
- The licence will eventually see 40,000 megalitres of groundwater extracted each year from an arid property north of Alice Springs
- Opponents fear the licence poses a serious risk to Aboriginal culture and country
In November 2021, the NT government re-approved a licence to horticultural venture Fortune Agribusiness to extract 40,000 megalitres of groundwater each year from Singleton Station, an arid cattle property north of Alice Springs, to develop one of the nation's biggest fruit farms.
The responsibility for re-granting the licence was delegated to then-Territory Families minister Kate Worden by then-environment minister Eva Lawler, due to a conflict of interest.
Opponents have expressed fears the water licence could lower the groundwater table, damaging groundwater-dependent trees, springs, soaks and swamps, and threaten sacred sites.
In a legal challenge to the decision, the Arid Lands Environment Centre (ALEC) and Mpwerempwer Aboriginal Corporation (MAC) alleged the government had not followed its own Water Act when it approved the licence, and claimed it posed a serious risk to Aboriginal culture and country.
A crowd of more than 30 people gathered in the Alice Springs Supreme Court on Wednesday to hear the judgement via video link, which Justice Peter Barr handed down in Darwin.
In his decision, Justice Barr said ALEC had not established that the "[minister's] statutory power had been 'abused'," and had "failed to establish that the minister's decision lacks an evident and intelligible justification".
Counsel for ALEC had argued the decision to re-grant the licence was "illogical" on the grounds it was not in accordance with the region's water allocation plan, which is designed to protect groundwater-dependent ecosystems.
But Justice Peter Barr ruled there was no statutory obligation for water extraction licences to comply with that plan.
"It is apparent that the language of the [water allocation plan] is in the nature of guidance, instruction and recommendation," he said.
"The use of the word 'should', rather than 'must', denotes a non-regulatory standard which is clearly not mandatory."
Justice Barr also said "MAC [had] failed to establish that the minister failed to give proper, reasonable and rational consideration to relevant considerations under [the] Water Act".
Fortune Agribusiness welcomes result
Fortune Agribusiness chair Peter Wood said he was relieved the case had been finalised.
"It's been quite a protracted, lengthy process and it enables us now to get on with the next stage of the process," he said.
"It caused significant delay, that delay does include costs, and it also delayed the start of the project and the benefits that will accrue from the project."
Despite opposition from traditional owners, Mr Wood said he still hoped to work with the Central Land Council and local Indigenous people.
"We will make every effort we possibly can to get really meaningful engagement with the local Indigenous people," he said.
"This project has the potential to quite transform the wellbeing and livelihood of people who are in a pretty disadvantaged location, and we're determined to ensure those people benefit from the project in a whole multitude of ways."
Fortune Agribusiness has said the horticultural project could create 110 permanent and 1,350 seasonal jobs, although this number has been disputed.
The company will need to complete an Environmental Impact Statement (EIS) — the highest level of environmental scrutiny in the NT — before it can proceed with the development.
Mr Wood said he expected the EIS to be completed by late 2025 at the earliest.
Plaintiffs 'considering judgement carefully'
ALEC chief executive Adrian Tomlinson said this was the first time the environmental group had taken a matter to the NT Supreme Court.
He called the outcome "devastating".
"This is based on the water laws we have now," he said.
"Clearly it shows the water laws are broken."
However, he said there was "still hope", as environmental impact assessments for the project were still underway.
"There is a long way to go before anything can happen on the ground. And we'll continue to fight," he said.
"Let's hope that we can finally get the right outcome and this water licence can be stopped."
Residents of Ali Curung, the remote Aboriginal community which has unanimously opposed the licence, have previously accused the NT government of using "forceful and deceptive tactics" to grant the licence.
"This water licence will cause the biggest damage the Northern Territory government will ever create and there will be no way to fix it," a joint community statement read.
"Once water is gone, it is gone. It will be us mob who are going to suffer in the end, us mob who are really living on this land."
In a statement released on Wednesday, the Central Land Council, which represented MAC during the case, said they were "considering the judgement carefully".
"[We] will explain it to the native title holders and remote communities affected by the water licence and seek their instructions," CLC chief executive Les Turner said.