COMMENCEMENT OF LEGAL CHALLENGE - NSW Fractured Rock Water Resource Plan

Brendan Kennedy (Chair MLDRIN) and Grant Rigney (Deputy Chair MLDRIN),today (Monday) in front of the Federal Court. Image: Cassandra Hannagan.

First Nations environmental lobbying group Murray Lower Darling River Indigenous Nations (MLDRIN) is in the Federal Court today to challenge the decision by Minister Plibersek to accredit the NSW Fractured Rock Water Resource Plan (WRP).

MLDRIN, a confederation of First Nations from the southern half of the Murray-Darling Basin, is before the Federal Court on Monday to obtain justice for First Nations.

The challenge is brought because MLDRIN wants to ensure that governments, their agencies and processes do not skim over First Nations’ rights for the sake of expediency.

The NSW Murray-Darling Basin Fractured Rock Water Resource Plan covers groundwater stored within the fractures, joints, bedding planes, faults and cavities within the geological rock mass of the NSW Murray-Darling Basin as well as alluvial sediments that overlie these fractured rock systems that have not been explicitly captured elsewhere.

“We repeatedly advised the MDBA that the Fractured Rock Water Resource Plan should not be recommended for accreditation," Brendan Kennedy, Chair, MLDRIN, Tati Tati Nation member, said.

“Some Nations, including my own, were not consulted at all. Some other Nations that were consulted did not feel they were consulted properly.

“Despite being aware of this, the MDBA recommended to the Minister that she accredit the plan, and the Minister just ticked a box.

“We are here today to get justice for First Nations and show the government, and the other authorities responsible for making recommendations that impact our lives, that they need to comply with the law.”

MLDRIN will argue that the Federal Water Minister’s accreditation of the NSW Fractured Rock Water Resource Plan, and the Murray-Darling Basin Authority’s recommendation that it be accredited, was unlawful.

MLDRIN says these accreditation and recommendation decisions were unlawful because the affected First Nations were not consulted as required by the Basin Plan 2012, an instrument of the Water Act 2007 (Cth).

MLDRIN says consultation failures mean that Nations’ social, spiritual and cultural values, as well as their uses of the water resources, were not properly considered when the Fractured Rock WRP was prepared.

“What happened was shameful," Grant Rigney, Deputy Chair, MLDRIN said.

"It shows how little both the NSW and Federal government care about First Nations peoples’ values and uses in the Basin Plan process.   

“The NSW Government left some Nations out of the consultation process.

"As the final decision maker, the Federal Water Minister must ensure that WRPs are lawful in all aspects prior to accreditation.

The MDBA recommended that the Minister accredit the WRP despite MLDRIN’s advice that it was not compliant with the Basin Plan.

MLDRIN’s advice was prepared at the request of the Commonwealth Government, specifically to support the accreditation process.

MLDRIN has also asked the Court to find the Minister’s decision was unlawful because the Minister did not have the proposed WRP in front of her, nor did she read it, before accrediting the plan.

"We hope that the Court will send a powerful message that this tick a box approach is simply not good enough.”

MLDRIN Chair Brendan Kennedy says the group is seeking justice. Photography Doug Gimesy.

Background

MLDRIN is a confederation of Southern Basin Nations that advocates for First Nations’ water rights and justice at the direction of its membership. It is the only self-determined community controlled water justice collective in the Murray Darling Basin. 

First Nations have cultural and moral obligations to care for Country, including water. The Basin Plan 2012, which is an instrument of the Water Act 2007 (Cth), requires governments and authorities when making Water Resource Plans to take into account Indigenous values and uses that are specific to the water resources – such as wetlands, aquifers and watercourses – within the area of a water resource plan. This provision ought to ensure that the water resource plans provide First Nations with a meaningful, and impactful, opportunity to engage in water resources management, which is part of a broader need to protect First Nation’s interests in water.

Hearing details:

Federal Court of Australia (Sydney) Hearings - Monday-Tuesday

Case: Murray Lower Darling Rivers Indigenous Nations v Commonwealth of Australia & Ors (NSD1201/2023)

Justice: Stewart J

Hearing: 10:15am, Monday to Tuesday, February 10-11, 2025.

Livestream link: Nil

Location: Court Room 18A Federal Court of Australia (Sydney Registry)

Level 17, Law Courts Building, 184 Phillip St, Queens Square, Sydney