Native title year in review 2025-2026

What you need to know

• Native Title Holders have won a High Court appeal in their challenge to a 30-year groundwater licence in the Northern Territory (Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment [2026] HCA 23).
• Relying on administrative law principles, the High Court held that the Native Title Holders were denied procedural fairness because they were not given notice of a licence condition that allocated the Aboriginal cultural values impact assessment to the proponent rather than to the Native Title Holders, as they had requested.
• In Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585, the impact of groundwater extraction on native title rights and interests was included in the calculation of compensation for cultural loss.
• The Australian Law Reform Commission has recommended enhanced procedural rights for Native Title Holders affected by the grant of water licences.

What you need to do

• Be aware that large water take is a considerable concern for Traditional Owners and legal structures enabling this to be articulated are increasingly available.
• Be alert to the possibility that a decision-maker's errors can undermine approvals – and watch the process carefully.
• Consider how things might have played out differently with the Northern Territory groundwater licence had there been an agreement between the proponent and the Native Title Holders.

Native Title Holders win High Court appeal in challenge to 30-year groundwater licence in Northern Territory

Grant of the water licence, legislative regime and history of challenges

The Mpwerempwer case was an administrative law challenge brought by the Mpwerempwer Aboriginal Corporation (MAC) against the NT Minister for Territory Families and Urban Housing, and concerned the largest groundwater licence ever granted in the Northern Territory.

Fortune Agribusiness Funds Management Pty Ltd (Fortune) holds a perpetual pastoral lease over Singleton Station, located in the Western Davenport region of the NT between Alice Springs and Tennant Creek. Fortune sought a 30-year licence to extract 40,000 megalitres of water per year for its proposed irrigated horticulture business.

Singleton Station is also native title land (Rex on behalf of the Akwerlpe-Waake, Iliyarne, Lyentyawel Ileparranem and Arrawatyen People v Northern Territory of Australia [2010] FCA 911). MAC is the registered native title body corporate for the Native Title Holders, who hold non-exclusive native title rights and interests in relation to the land. Those interests include the right to access land and waters to maintain and protect places of cultural importance and the right to take and use the natural resources of the land and waters.

Singleton Station is subject to the Western Davenport Water Allocation Plan (Water Plan). Relevantly: 

• one of the Water Plan's objectives is to "protect Aboriginal cultural values associated with water and provide access to water resources to support local Aboriginal economic development"; and 
• one of the Water Plan's implementation activities is a "cultural values protection program" to be completed by the relevant NT Government department in partnership with Traditional Owners and with the assistance of the Central Land Council (CLC).

In August 2020, Fortune applied to the NT Controller of Water Resources under section 60 of the Water Act 1992 (NT) for a 30-year licence to take and use groundwater. Ordinarily, NT groundwater licences can only be granted for a maximum of 10 years. However, section 60(4) of the Water Act contains an exception which allows longer licences in special circumstances. This issue was litigated in detail in the lower courts and the High Court, but is beyond the scope of this article.

In April 2021, the Controller granted the licence for a period of 30 years under the exception. MAC sought a review of the Controller's decision under the Water Act's review mechanism. 

The NT Minister for the Environment referred the matter to the Review Panel. The CLC (acting on behalf of MAC and various other parties) provided written submissions to the Review Panel, made representations at the hearing and provided an Aboriginal Cultural Values Assessment prepared by an anthropologist.

The Review Panel's advisory report concluded that a licence term of greater than 10 years, with suitable conditions, was appropriate for a large-scale development such as that proposed. The Review Panel also recommended that a comprehensive cultural impact assessment be required prior to the extraction of groundwater. 

On 15 November 2021, the Minister granted Fortune a revised licence under the exception. The revised licence maintained the 30-year term but imposed two additional conditions precedent (CPs). Relevantly, CP 10 required Fortune to develop a groundwater-dependent Aboriginal cultural values impact assessment and submit it to the Controller. The assessment was to be conducted by Fortune's expert and did not require consultation with MAC. MAC and the CLC were not notified of, or invited to comment on, CP 10 before the licence was granted.

MAC unsuccessfully challenged the Minister's decision to grant the revised licence in both the NT Supreme Court and Court of Appeal, but was granted special leave to appeal to the High Court.

High Court decision

The High Court's decision to quash the grant of the water licence was unanimous. It considered three issues.

MAC's principal ground of appeal challenged the Court of Appeal's finding that the Minister had formed the requisite state of satisfaction that "special circumstances" existed to justify the 30-year licence term. The High Court upheld this ground, holding that the Minister had failed to discharge this statutory function under the exception.

MAC argued that the Minister failed to properly consider a mandatory consideration under section 90(1) of the Water Act, namely the protection of Aboriginal cultural values, but was unsuccessful on this ground of appeal because:

• there was evidence in the Minister's reasons that she had taken cultural values into account; and 
• the legislation did not require the Minister to consider cultural values in a particular way – it only required that the Minister consider them. 

MAC's third ground of appeal was that the Minister failed to provide MAC with the opportunity to be properly heard before imposing CP 10 and therefore denied MAC procedural fairness. The High Court also upheld this ground. 

The High Court found that, where a decision-maker reaches an adverse conclusion that would not have been obviously open on the known material, that conclusion should be disclosed to the affected person before the decision is made.

Applying that principle to this case, the High Court held that CP 10 should have been disclosed to MAC before it was imposed as a condition of the groundwater licence, because: 

Accordingly, MAC should have been given a reasonable opportunity to make a submission in respect of the possible imposition of CP 10.

The High Court ordered that the decision of the NT Court of Appeal be set aside, the licence be quashed and the matter remitted to the Minister to be decided according to law.

This is not likely to be the end of this long-running dispute about Fortune's irrigation plans at Singleton Station.

Key insights

A notable feature of this case is that MAC's challenge did not rely on the Native Title Act 1993 (Cth), sacred sites legislation, human rights or international law instruments. The High Court did not need to express a view about MAC's status (as the registered native title body corporate) or examine the special nature of native title interests. Instead, it was confined to "ordinary" administrative law principles governing decision-making under the NT Water Act. This is similar to the Barngarla Native Title Holders' success with an "ordinary" administrative law challenge to the Federal Government's decision to declare part of their country a nuclear waste dump (Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809).

Yindjibarndi compensation award includes impact of water licences

The Federal Court's recent compensation decision in Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585 (Yindjibarndi) included the impacts of groundwater extraction in the calculation of cultural loss.

The Court considered the impact of dewatering at the mine site on groundwater and groundwater-dependent ecosystems both within and outside the mine site. It was irrelevant that the native title determination did not confer exclusive rights in relation to water. Compensation was payable for the Yindjibarndi People's spiritual group harm arising from damage to the flow of groundwater into two creeks outside the mine site and harm caused to country arising from the reduction in water for vegetation. 

This is the first time a court has considered water licences in the context of a native title compensation claim. It remains to be seen whether the findings can be extrapolated to allow a separate group of Native Title Holders to claim compensation for impacts outside a determination area, or whether a "future act" can also have an impact in this manner.

For more information about this decision, see our Native Title Year in Review 2025-2026 article "Federal Court creates more precedent for native title compensation".

Australian Law Reform Commission recommendations about water licences

The Australian Law Reform Commission's (ALRC) final report, Fulfilling the promise of Mabo: Reforming the Future Act Regime in the Native Title Act (Report), recommends enhancing the procedural rights that must be afforded to Native Title Holders in relation to the conferral of rights to take or use water. It recommends that the right to negotiate apply to the taking of significant amounts of water, and that Native Title Holders have the opportunity to be consulted about all other water-related future acts.

The Report also acknowledges that some water licences may affect native title rights over vast areas, including downstream areas far from the physical point of water extraction, but that procedural rights are commonly only afforded to Native Title Holders in the immediate footprint of the licence. The Report questions whether this common practice is supported by the current requirements of the Native Title Act. It suggests that if the recommended reforms are implemented, they will need to specify the persons to whom the procedural rights are afforded under the proposed new regime (see paragraphs [6.177] to [6.184]).

This has a practical compensation consequence: affected native title parties should not necessarily be identified only by the licence area, extraction point or immediate works footprint, because the actual effect on native title rights may travel with the water system. The ALRC does not resolve how all downstream affected parties should be identified, and says the issue is complex and requires further consideration.

For more information about this Report, see our Native Title Year in Review 2025-2026 article "ALRC recommends sweeping Native Title Act changes".

NSW Water Management Act incorporates cultural values in enforcement proceedings 

Recent reforms to the Water Management Act 2000 (NSW) introduce cultural values in an enforcement context. The range of factors a court must consider in imposing a penalty for criminal offences has now been expanded to include: 

• the impact, likely impact or potential impact of the offence on the spiritual, social, customary or economic use or value of the land or water by Aboriginal people; and
• the views of the Aboriginal persons impacted or likely to be impacted. 

For more information about these amendments, see our Environment and Planning Year in Review 2025 article, "A new age of enforcement under the NSW Water Management Act", published on 14 May 2026.

Want to know more?

• ALRC recommends sweeping Native Title Act changes (26 October 2026)
• Federal Court creates more precedent for native title compensation (30 October 2026)
• A new age of enforcement under the NSW Water Management Act (14 May 2026)
• Native Title Year in Review 2024-2025 (9 September 2025)
• First Nations consultation requirements for offshore projects (9 September 2025)

Authors: Clare Lawrence, Partner; Leonie Flynn, Expertise Counsel and Alison Kemp, Graduate.