In late 2023, EDO filed proceedings in the Federal Court on behalf of the Murray Lower Darling Rivers Indigenous Nations (MLDRIN). MLDRIN challenged a decision of the former Federal Water Minister Tanya Plibersek to accredit the Fractured Rock Water Resource Plan (WRP). MLDRIN also challenged the Murray Darling Basin Authority’s recommendation that the Minister accredit the WRP.
Background
The Water Act 2007 (Cth) (Water Act) is a Commonwealth law that regulates ground and surface water resources across the Murray Darling Basin. The Murray Darling Basin covers most of NSW, more than half of Victoria, all the ACT, some of southern Queensland, and the east of South Australia. It is Australia’s largest river system. The Water Act creates obligations for “Basin States” (NSW, Victoria, ACT, Queensland, and South Australia) in relation to water management. This includes a requirement to prepare water resource plans (WRPs).
The Basin Plan 2012 (Cth) contains the detail of the water management rules and sets the maximum volumes of water that can be taken from the Basin each year.
WRPs set out rules for managing Basin water resources at a local or catchment level. They are prepared by Basin States, assessed by the Murray Darling Basin Authority, and then accredited by the Commonwealth Water Minister. The Basin Plan sets out requirements for WRPs, including requirements about consulting with Aboriginal people.
Case outcome
The case was heard by Stewart J in February 2025. On 29 August 2025 the Court found that the Fractured Rock WRP was invalid because the Minister did not have it before her when she accredited it. The decision to accredit it has been ‘remitted’, or sent back, to the current Federal Minister for the Environment and Water, Murray Watt, to reconsider.
MLDRIN’s case had also argued that the Authority’s recommendation decision was unlawful because of shortfalls in the First Nations consultation processes – including a failure to consult with the Tati Tati Nation. MLDRIN argued these shortfalls meant the Fractured Rock WRP was not consistent with the Basin Plan.
The Court found that the Authority’s recommendation decision was lawful. This was because the Authority is allowed to make a recommendation to the Minister even if a WRP is not consistent with the Basin Plan. The Authority only needs to consider the extent to which a WRP is consistent with the Basin Plan.
Because the Minister conceded that she did not have the WRP before her when she accredited the WRP, and this made the decision unlawful, it was not necessary for the Court to consider whether the consultation issues also made the Minister’s decision unlawful.
Importantly however, the Court found that the Minister’s decision is not simply a rubber-stamping exercise – the Minster must be independently satisfied that the proposed WRP is consistent with the Basin Plan.
First Nations Cultural Knowledge also protected
The Court also set an important precedent by making confidentiality orders that protect cultural knowledge contained in First Nations consultation reports. These were the reports commissioned by NSW and prepared by consultants after the Nation participants had signed data use agreements which stated that their information would be collected only for the WRP consultation.
Usually, once evidence is tendered in Court, anyone can access it on request to the Court registry. The orders in this case prevent this.
MLDRIN had submitted to the Court that the reports contained both “culturally sensitive” information and “cultural knowledge” which the Nations had not consented to being publicly disclosed. This included the history, stories, practices, laws, customs, spiritual beliefs and community concerns (environmental, economic, social and health) specific to consulted First Nations, and the identities of and quotations from participants providing that information. This is a broader category of evidence than is typically subject to confidentiality orders (such as gender restricted information in native title cases).
The Court agreed that the cultural knowledge was inherently sensitive and confidential, that it was provided to the NSW Government in confidence, and under a contract that protected confidentiality. Releasing the information publicly would undermine future consultation with First Nations and MLDRIN’s right to pursue justice in court. In other words, the fact the consultation participants had shared confidential information should not mean that MLDRIN (or others) have to choose between pursuing justice in Court or protecting their cultural knowledge.
The Court regularly suppresses information that is commercially confidential or is personal information (e.g. names and addresses). What sets this decision apart is the Court found that this case was similar to such cases. The Court said:
“There is no reason why the Court should treat cultural knowledge as less deserving of protection than those categories…. there is a very high public value placed in the maintenance of the confidentiality of such information.”
More information
You can find more information about the case here :
