NEW SOUTH WALES COURT ISSUES JUDGEMENT ON EMU RIDER, ET AL. V/S MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 CASE

Australia, July 24 -- New South Wales Land and Environment Court issued text of the following judgement on June 24:

1. Emu Rider Pty Ltd and five other applicants (collectively 'Emu Rider') are landholders in a catchment in northwestern New South Wales referred to as the NSW Border Rivers Water Management Area. Emu Rider challenges decisions of the Minister administering the Water Management Act 2000 (NSW) (WM Act) relating to the issue to the applicants of replacement floodplain harvesting access licences for the NSW Border Rivers Regulated River Water Source and a decision of the Minister on 2 October 2024 to refuse to consider amending the licences under s 68A of the WM Act.

2. In the Second Further Amended Summons, Emu Rider raises nine grounds of review of the decisions relating to the replacement floodplain harvesting access licences (grounds 1-9), one ground relating to the decision not to amend the licences (ground 10), and one ground relating to an alleged breach of the heads of agreement which the parties had entered into in an endeavour to settle the proceedings (ground 11). By the end of the hearing, Emu Rider pressed the last two grounds only in relation to the costs order that should be made.

3. The nine grounds of review of the decisions relating to the replacement floodplain harvesting access licences concerned five steps in the statutory process for the issue of the replacement floodplain harvesting access licences.

4. The first step was the making of the Water Management (General) Amendment Regulation 2021 (the 2021 Regulation), published on 17 December 2021, purportedly pursuant to s 57A of the WM Act. Emu Rider claimed that the 2021 Regulation was made before a proclamation was made under s 55A of the WM Act declaring Chapter 3, Part 2 of the WM Act (in which s 57A is located) to apply to the relevant water source, the NSW Border Rivers Regulated River Water Source. This is ground 1 (the invalidity of the 2021 Regulation ground).

5. The second step was the proclamation under s 55A of the WM Act applying Chapter 3, Part 2 of the WM Act to the NSW Border Rivers Regulated River Water Source. The Water Management (Application of Act to Certain Water Sources) Proclamation 2022, published on 18 February 2022, declared that Chapter 3, Part 2 of the WM Act applies to the Water Sharing Plan for the NSW Border Rivers Regulated River Water Source 2021 (Water Sharing Plan). The Water Sharing Plan, published on 2 July 2021, applies to the NSW Border Rivers Regulated River Water Source within the Border Rivers Water Management Area (the water source) (cl 4(1)). The water in the water source "consists of the water between the bed and banks of all rivers that have been declared by the Minister to be regulated rivers and that is available to New South Wales..." from identified parts of the Pindari Dam water storage, Severn River, Macintyre River, Barwon River and Dumaresq River (cl 4(2)).

6. Emu Rider claimed that this proclamation did not declare Chapter 3, Part 2 of the WM Act to apply to the floodplain for these rivers of the water source but only the rivers themselves. The water in the water source was limited to the water between the bed and banks of the rivers and did not extend to water on the floodplain. Water on a floodplain is capable of being a water source under (b) of the definition of "water source" in the Dictionary to the WM Act.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1979ab0cc76f1879b6796fd0)

Disclaimer: Curated by HT Syndication.