Murray Lower Darling Rivers Indigenous Nations v Cth & Ors: Court strikes out NSW Water Resource Plan and makes legal precedent to protect cultural knowledge

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.   

The Federal Court handed down its decision on 29 August 2025. You can read about the decision here.

The Basin Plan Evaluation and Review

The need for improved engagement with and representation of First Nations in WRP planning has been highlighted in the recently published Basin Plan Evaluation and the Literature Review of First Nations water goals and progress in the Murray Darling Basin.  

These issues are also expected to be at the forefront of the upcoming review of the Basin Plan. The review is required by law to take place in 2026. Amongst other things the review will consider First Nations involvement in water decision-making. In particular, section 50(4A) of the Water Act 2007 (Cth) requires that the Review consider how well the Basin Plan recognises and protects the interests of Indigenous people and how it supports Indigenous participation in priorities and strategies for development or use of the Basin water resources, including opportunities for participation that incorporates Free, Prior and Informed Consent. 
 

Introducing our new Outreach Senior Solicitor Ashley Truscott

Ashley Truscott is a proud Noongar, Yamatji, and Yugunga-Nya man who grew up in Boorloo (Perth). Ashley joined EDO's First Nations Country and Cultural Heritage Program in July as our new Senior Solicitor (Outreach). 

Ashley brings with him extensive experience in native title future acts, mining, and cultural heritage law in Western Australia. He has also worked as a civil and human rights lawyer across both federal and state jurisdictions, focusing on racial discrimination matters. Currently completing his Master of Laws, Ashley is deeply passionate about advancing First Nations access to justice. 

We are delighted to welcome Ashley to the team and look forward the invaluable contributions and expertise he will bring to EDO! 

NAIDOC Week 2025 - Celebrating 50 years!

2025 marked the 50th anniversary of NAIDOC Week: a week to celebrate, honour, and elevate the voices, history, culture, achievements and resilience of Aboriginal and Torres Strait Islander Peoples. 

This year, the EDO was proud to host stalls at NAIDOC Week events in Gadi (Sydney), Meanjin (Brisbane), and Boorloo (Perth). At our stalls, we loved supporting and connecting with community, sharing our factsheets and resources, getting crafty in activities, and handing out some of our favourite EDO goodies including  bubbles, stickers and tote bags! 

EDO also hosted a NAIDOC Week staff luncheon with a fun challenge, where staff were challenged to bake something delicious in the spirit of NAIDOC. We came together for a virtual lunch across our offices, sharing not only our creations but also our stories and reflections on NAIDOC Week. 

NAIDOC Week is a wonderful opportunity to come together in celebration, and we are  grateful for the opportunity to meet and connect with the community during the weeklong celebrations. EDO looks forward to seeing you again next year and to being part of even more NAIDOC events across the country! 
 

Image: EDO WA Managing Lawyer Jess Border, First Nations Program Administrator Troy Leishman and Country and Cultural Heritage team's Senior Solicitor Nadja Zimmerman at the Great North Conference. 

Australia's Great North Conference 2025

EDO staff recently attended the Australia's Great North Conference, held on 18-19 September on Larrakia Country in Garamilla (Darwin) and hosted by the Environment Centre NT, Environs Kimberley, Arid Lands Environment Centre and Cairns and Far North Queensland Environment Centre.  

The conference brought together an inspiring mix of speakers, campaigners, researchers, land managers, peak bodies, Traditional Owners, artists, and community members for two days of thought-provoking discussions and diverse programs talking about future environmental protection across Northern Australia. We heard powerful insights from First Nations leaders who spoke about the interconnected challenges facing communities, culture, Country, and climate. 

Conference participants collaborated to develop a declaration that captures these challenges and which sets out a shared vision for action and change across Northern Australia.

LFB Resources NL v Minister for the Environment and Water: Orders made to limit costs liability of First Nations group

Key take away
If a First Nations group or individual makes a successful application for a section 10 declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) they could end up being a party to a court case if the declaration is then challenged. If the group or individual wants to actively participate in the case and make arguments in court, they might also have to pay the other side's legal costs if they lose.  

This case creates precedent for the Court limiting costs liability in this context. In other words, it makes it more likely a Court will make a similar order putting a limit on what costs could be payable by a First Nations s10 applicant in future cases.   

Explanation of the decision
In August 2024, the former Commonwealth Minister for the Environment made a declaration protecting Aboriginal cultural heritage at risk of harm from a proposed gold mine near Blayney in NSW. The declaration was made under section 10 of the ATSIHP Act. 

The owner of the proposed mine, LFB Resources NL (LFB) then challenged the section 10 declaration in the Federal Court. The case was brought not only against the Minister for the Environment, but also against those who provided evidence in support of the section 10 application including the Wiradyuri Traditional Owners Central West Aboriginal Corporation (WTOCWAC).  

The WTOCWAC is a party who is actively participating in the case to try to protect the declaration.   Usually, the losing party in a court case is ordered to pay the legal costs of the successful party. These   costs can be very high many tens or even hundreds of thousands of dollars. But in some circumstances, the Court can limit (or cap ) costs at a certain amount at the beginning of a case. This provides upfront certainty about the potential costs faced by a losing party. 

The WTOCWAC applied for orders that would cap their costs liability. In August, the Federal Court made orders capping the costs liability of the WTOCWAC at $20,000. The Court accepted evidence provided by the WTOCWAC that a costs liability of more than $20,000 could significantly affect the WTOCWAC's financial position and would likely result in it having to withdraw from the case. 

For further information:

• Read the Court's decision here
• Read the Minister's section 10 declaration here

Cooper v Minister for Environment and Water  

In February 2022, Raelene Cooper and Josie Alec, traditional custodians of Murujuga, (the  Burrup Peninsula), part of the Dampier Archipelago in the Pilbara region of WA applied to the former Minister for the Environment Tanya Plibersek  for a declaration under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act). The application sought protection of Murujuga from injury and desecration from current and future offshore gas and other industrial development, including industrial emissions from Woodside Energy's North West Shelf and Scarborough projects and its proposed Browse Basin project. Murujuga contains one of the densest concentrations of rock engravings in Australia as well as stone arrangements and sacred sites.  Its outstanding cultural heritage values have been internationally recognised by inclusion of the Murujuga Cultural Landscape on the World Heritage List in July this year. 

By May 2025 the applicants had been waiting for 3 years for the Minister to make a decision about the section 10. Ms Cooper therefore sought an order from the Federal Court requiring the Environment Minister to make a decision.  

The case was heard by Stewart J on 20 August 2025.  

The Court agreed that there had been an unreasonably long delay in making a decision on the section 10, with no adequate explanation. The Court also emphasised the considerable importance of s10 declarations aimed at protecting important public interests which, if not protected, may be lost forever . The ATSIHP Act accords a high value to such protection. 

The Court did not need to make the formal orders sought by Ms Cooper because the Government had told the Court that a decision on the section 10 was imminent - the Court action itself being a major driver behind this.  

Indeed, on 12 September 2025 a decision on the application was finally made, with Environment Minister Murray Watt making a section 10 declaration protecting parts of Murujuga.    

More information:

• Read the Federal Court's decision here
• Read the section 10 declaration here
• Read the Explanatory statement here
• Read the Minister's reasons for making the partial section 10 declaration here

Pabai v Commonwealth of Australia 

On 15 July 2025, the Federal Court dismissed a landmark case brought by Torres Strait Islander leaders Uncles Pabai Pabai and Guy Paul Kabai, who argued that the Commonwealth owed a duty of care to protect their communities from the impacts of climate change. 

The case, filed on behalf of the Guda Maluyligal Nation, claimed the government had a responsibility to prevent or mitigate harm to the Torres Strait Islands, their environment, and the Islanders way of life by acting in line with the best available climate science. 

The Court heard that climate change related flooding and inundation events had damaged sacred sites and the burial grounds of the applicants ancestors, preventing them from engaging in many of their traditional ceremonies and customs, and other traditional and life-sustaining activities, including hunting, gathering and gardening.  

Central to the case was whether Australian law should recognise new duties of care specifically, whether the Commonwealth must act to reduce climate harm, and whether the loss of Ailan Kastom (the cultural traditions and practices of Torres Strait Islanders) can be compensated under negligence law. 

The Court agreed that climate change has had a significant adverse impact on the traditional way of life of many Torres Strait Islanders and has resulted in Torres Strait Islanders collectively suffering a loss of fulfilment of Ailan Kastom: the Torres Strait Islands and their traditional inhabitants are quite literally at the very frontline of climate change and its devastating impacts. The Court also said that unless something is done to stop the global warming and its impacts on climate change, there is a very real risk that the Torres Strait Islanders will lose their islands, their culture and their way of life and will become climate refugees. 

However, the Court ultimately dismissed the case because of earlier Australian court decisions had ruled that government conduct and decisions which involve matters of high or core government policy are not subject to a duty of care.  

The Court did not make a specific finding on whether, if such a duty did exist, the applicants could be compensated for being prevented from participating in and observing their traditional customs, traditions, observances and beliefs. 

Read the Court's summary of its decision here
 

International Court of Justice Advisory Opinion on obligations of states in respect of climate change 

Within days of the Pabai v Commonwealth of Australia decision, on 24 July 2025 the International Court of Justice (ICJ) issued a landmark advisory opinion regarding the obligations of states to address climate change under international law.

As the highest court in the world, the role of the ICJ is to hear disputes between states, usually around international law, and to clarify questions of law asked by the United Nations via production of an advisory opinion.

At the request of the United Nations General Assembly, initiated by the Pacific Island nation of Vanuatu and supported by over 130 countries, the ICJ provided an advisory opinion that determines the obligations of states in relation to climate change under international law generally.

The ICJ found unanimously that states must reduce their GHG emissions under international law and minimise any actions that would result in their release. Failure to comply could result in legal action before the ICJ, potentially leading to orders for emission reductions, environmental restoration, or compensation to affected nations, particularly Pacific Island states.

Gold Coast Water Plan Review

The Queensland Government is consulting with the community on the 2006 Gold Coast Water Plan. 

The Government has prepared a draft water plan, along with a draft updated Water Management Protocol and Water Entitlement Notice. These documents support the implementation of the new plan and can be read here.

A summary of key changes to the current water plan is here.
 
Feedback on the plan must be submitted by 30 November 2025. 

Tasmanian West Coast Strategy

Tasmania Parks and Wildlife Service has published the West Coast Off-road Vehicle Strategy 2025. The Strategy aims to encourage four-wheel driving on the West Coast of Tasmania, including over the Arthur-Pieman Conservation Area and the Western Tasmania Aboriginal Cultural Landscape, listed by the Commonwealth Government in 2013 under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)  as a National Heritage Place because of the significance of its Aboriginal cultural heritage values. 

The EDO has reviewed the Strategy and considers that it should be referred to the Commonwealth Minister for the Environment and Water for approval. We have drafted a Briefing Note which explains why.

Image: Australian Climate Service 2025 Extreme Temperature  - Australia (extracted on 2 November 2025 from Data Explorer | Australian Climate Service Website) 

Australian National Climate Risk Assessment Report 2025 

The Australian Climate Service has recently released Australia's first National Climate Risk Assessment. This report details the climate risks Australia is experiencing now and in the future.  

The Report finds that climate change is likely to have disproportionate impacts on Aboriginal and Torres Strait Islander peoples ways of life, health and wellbeing, as well as on their food and water security and economic livelihoods. The Report identifies the following key risks:  

• Risk to self-determination Aboriginal and Torres Strait Islander peoples ability and right to freely pursue their economic, social and cultural development is at risk due to their disproportionate experiences of the effects of climate change. This is an interconnected risk that compounds other key risks. 
• Risk to land, sea and Country (natural environments, biodiversity, ecosystems) through the changing climate, increased extreme weather events and rising warming waters that impact biodiversity, cultural sites, communities and settlements.  
• Risk to cultural knowledges, practices, values and sites due to climate impacts on Country and through action on climate change. Risk to people's health, wellbeing and identity from the effects of climate change. This causes increased prevalence and acuity of mental and physical health conditions from Country being sick, as well as displacement from Country due to extreme weather.  
• Risk to people's health, wellbeing and identity from the effects of climate change. This causes increased prevalence and acuity of mental and physical health conditions from Country being sick, as well as displacement from Country due to extreme weather. 
• Risk to economic participation and social and cultural economic development for Aboriginal and Torres Strait Islander peoples, communities and nations from climate hazards and their impacts.  
• Risk to water and food security as waterways are integral to the quality, longevity and cultural way of life for Aboriginal and Torres Strait Islander peoples. Therefore, the disruption of waterways and related infrastructure due to climate events can have harmful, far-reaching and long-term effects.  
• Risk to remote and rural communities, which are exposed to increased risks as climate hazards and events increase interruptions to water, energy, medical and telecommunication infrastructure and reduce food and water security through diminished road, air and water access. 

More information

• Read the National Climate Risk Assessment Report here.
• Read the supporting Aboriginal and Torres Strait Islander Peoples Technical Report here.

Treaty for Victoria 

EDO congratulates the  First Peoples of Victoria on the historic enactment on 30 October 2025 of the Victorian Statewide Treaty Bill 2025.

The Treaty has been negotiated between the state government and the First Peoples Assembly of Victoria, the elected body representing Indigenous communities across the state and establishes Gellung Warl as the permanent representative and deliberative body for Traditional Owners and First Peoples in Victoria. 

The Treaty also establishes mechanisms for truth-telling, accountability, and future treaty-making. You can read the Treaty here.

If you are aware of upcoming events related to Country, culture, water, environment, or law that you would like to share, please let us know at: [email protected]