Important recognition of water justice for Indigenous Peoples in Australia.
By Erin O’Donnell, Blue Communities Ambassador and Associate Professor, University of Melbourne.
On 5th August 2026, Australia’s highest court made a ruling to quash a water licence that had been issued by the government of the Northern Territory.
The Northern Territory Government had issued a water licence to Fortune Agribusiness, for a large new horticulture development in central Australia. This project has been consistently opposed by the Indigenous Peoples of the region, who have identified major risks to Aboriginal cultural heritage and the environment.
The water licence was the largest single licence that has ever been issued in Australia. Unlike the standard 10-year licences in the Northern Territory, this licence was issued for 30 years, and at full utilisation, it would have allowed up to 40 gigalitres (40 billion litres) to be extracted from aquifers in central Australia, every year.
In 2022, the Central Land Council, a peak Indigenous body, commissioned an independent review of the economic outcomes of the project. This review found that the Northern Territory government had essentially gifted the project water worth between $70 million and $300 million, for free, and that the economic outcomes of the development were likely to be extremely modest, with little of these flowing to Indigenous People.
Environmental impact assessment modelling prepared by the developer shows that, over the life of the project, it would cause groundwater levels to drop over 50 metres below current levels. This would be devastating to groundwater dependent ecosystems, including culturally significant places and species. The effects of groundwater depletion would extend over 1500 hectares, well outside the boundaries of the development site.
Mpwerempwer Aboriginal Corporation, a registered native title body corporate representing the Indigenous Traditional Owners, had challenged the decision to issue the licence in the Northern Territory Supreme Court, and again in the Northern Territory Court of Appeal, and each time they were unsuccessful. This was the third legal challenge, in Australia’s highest national court, the High Court.
The case was not a determination on whether the development should go ahead, but rather whether the decision to issue the licence had been lawful. The court found that the Northern Territory government had not issued the licence lawfully, on two grounds. The first was that there was not sufficient justification to grant a 30-year licence rather than a ten-year licence, and the second was that Mpwerempwer Aboriginal Corporation had not been afforded procedural fairness, and should have been given the opportunity to make a submission on the conditions attached to the licence.
This case represents a major victory for Mpwerempwer Aboriginal Corporation and the Traditional Owners of the region. However, the next step in this process is for the Northern Territory Minister for Water to make the decision about whether to issue the licence again. This decision will require improvements to the process for doing so, including making sure that Indigenous People have the opportunity to be heard at key points in the process, but this may not prevent the licence being re-issued in future.
The enduring flaws in the water laws of the Northern Territory continue to produce racialized outcomes when it comes to accessing safe drinking water, water for Aboriginal economic development, and water to protect the environment and Aboriginal cultural heritage. Achieving genuine, lasting water justice in Australia will require major water law reform.
If you want to support the communities affected by the water licence:
https://ali-curung.raiselysite.com/
