Native title holders from Central Australia have secured a High Court victory in their fight to assert control over an aquifer.
On Wednesday, the High Court ruled in favour of the Mpwerempwer Aboriginal Corporation (MAC) in its long-running challenge to the groundwater licence granted to a horticulture company seeking to grow fruit and vegetables in the desert south of Tennant Creek on Singleton Station.
Fortune Agribusiness's proposal would transform the property into one of Australia's largest fruit farms, extracting up to 40 gigalitres of groundwater from Singleton Station each year once fully operational.
The water would be sourced from an underground aquifer accessed by bores on the station. In submissions to the court, MAC previously noted the volume of groundwater extracted over 30 years would be equivalent to draining Sydney Harbour twice over.
"Experts value the water at between $70 million and $300 million, yet the NT government is granting the licence free of charge to Fortune Agribusiness. The company plans to use the precious water to grow crops, largely for international export," a statement released in February said.
Over the past four years, MAC unsuccessfully challenged the licence in the Northern Territory Supreme Court and Court of Appeal before taking the matter to the High Court in February.
Lawyers for MAC argued the Minister at the time erred in granting a 30-year licence, rather than the standard 10-year term, by failing to properly justify the decision. They also argued the Minister "failed to consider a mandatory relevant consideration, namely the protection of Aboriginal cultural values in a manner that was sufficient to comply with s 90(1) of the Water Act".
In their submissions, the Northern Territory Government argued the legislation did not require the Minister to consider any cultural values impact assessment.
The High Court unanimously ruled the licence had been unlawfully granted.
"It is plain from the statutory scheme that Parliament considered that a grant of a licence to exploit the water resources of the Northern Territory for more than ten years was an important issue which would require the particular and active attention of either the Controller or, upon review, the Minister," the court said.
"That did not occur here."
The court ruled the Minister "failed to address herself to the relevant statutory question and so failed to discharge her statutory function according to law".
"Without that opinion having been formed, a water extraction licence for a period exceeding ten years could not be granted."
The High Court quashed the licence and referred the matter back to the relevant NT Minister for reconsideration, and will have to take into account the NT's relevant environmental processes. The Northern Territory Government must also pay MAC's appeal costs relating to procedural fairness.
"Water is life for us"
In response to the ruling — the first time a groundwater licence has been challenged by Traditional Owners in the High Court — Central Land Council (CLC) Chief executive Les Turner said the current project has "no social licence"
"Its claimed economic benefits are questionable," he said. "And the decision to grant the Singleton water licence has now been judged unlawful."
Native title holder Valerie Curtis said the journey had been long, but "we wasn't going to give up".
"We was gonna continue to fight, but I'm glad that we did get a really good outcome from the High Court, and we're really happy," she said. "Those elders that have passed on, they would be really happy and proud of what we have achieved for our country."
Ms Curtis argued the courage and strength of people who had passed away needed to be replicated.
"Supporting each other and speaking up strongly. Being leaders for our country and our younger generation," she said. "We want whatever's there on our country left for our future generations. For them to continue looking after country and practising culture on the land."
Fellow Native title holder Dawn Swan added: "We just hung in there."
"We were positive," he said. "Now it's time for peace, calmness and healing for us."
In a statement, the CLC argued: "Fortune Agribusiness has not explained how its project can comply with the NT's strict sacred site laws.
"Traditional owners are prepared if Fortune Agribusiness continues its application for a water licence," they said. "They are taking part in the ongoing environmental impact assessment which will gather evidence about the impacts of the project and make recommendations on minimising harm."
