Showing posts with label SA Murray-Darling Basin Royal Commission. Show all posts
Showing posts with label SA Murray-Darling Basin Royal Commission. Show all posts

Friday 1 February 2019

Murray-Darling Basin Commission Report Précis: hard right ideology, ignorance, politics and greed have all but killed the largest river system in Australia


The Guardian, 29 January 2019: The fish kill near Menindee in NSW on Monday left the Darling River carpeted in dead fish. A South Australian royal commission is likely to find the Murray Darling Basin Plan to be in breach of the federal Water Act. Photograph: Graeme McCrabb

ABC News, 30 January 2019:

The Murray-Darling Basin Royal Commission has found Commonwealth officials committed gross maladministration, negligence and unlawful actions in drawing up the multi-billion-dollar deal to save Australia's largest river system.

Commissioner Bret Walker SC recommended a complete overhaul of the Murray-Darling Basin Plan, including reallocating more water from irrigation to the environment.

The report found the original plan ignored potentially "catastrophic" risks of climate change….

Commissioner Walker accused the original architects of the multi-billion-dollar plan of being influenced by politics, with the report finding "politics rather than science" drove the setting of the "Sustainable Diversion Limit (SDL) and the recovery figure of 2,750 GL".

"The [water] recovery amount had to start with a 'two'," he said.

"This was not a scientific determination, but one made by senior management and the board of the MDBA……


Triple bottom line myth

The most pernicious of the polemical uses to which the slogan of the triple bottom line has been turned is to argue, in various forums and with varying approaches to frankness, that the triple bottom line requires the volume of reduction in consumptive take (sometimes called the water to be ‘recovered’, ie for the environment) somehow to be less than it would be on solely the environmental grounds stipulated in the Water Act, whenever it can be seen that recovering less would benefit farming, therefore the economy and therefore society. It is, admittedly, hard not to travesty the argument, so bereft as it is of a serious purposive reading of the actual enacted text.

No-one, in or out of this Commission, has explained how this triple bottom line is meant to work, directed as it must be to a numerically designated ‘limit’ of take. If all three dimensions are operating equally and simultaneously, as the slogan and the statutory term ‘optimises’ might at first sight suggest, how does a statutory decision-maker adjust — up or down — the recovery target by reference to each of the three dimensions? They are, at least partially, incommensurables. And what is the real difference, when it comes to irrigated agriculture, between economic and social outcomes? How far does one project in order to assess the best available outcomes?

None of these imponderable puzzles exists on the plain reading of the Water Act, by which the environmental threshold level (no ‘compromise’ of key environmental values) is set — and then as much irrigation water as can sensibly be made available is made available, in order to optimise the economic and social outcomes generated by the continuation of modern and efficient irrigated agriculture. Of course, from time to time, not least because of the inter-generational ecologically sustainable development principles, social outcomes — and even economic outcomes — may well come to be seen as mandating less rather than more (or the same) volume of consumptive take. But the true, single, bottom line is that no more water may be taken than at the level beyond which the key environmental values would be compromised.

The late Professor John Briscoe, whose distinguished career culminated at Harvard, was a doyen of international water resources management studies. His insights and eminence were acknowledged by, among many other weighty assignments around the world, his selection to play a leading role in the 2010 High-Level External Review Panel convened by the MDBA to scrutinize and critique the beleaguered draft Guide to the proposed Basin Plan (Guide) (see Chapter 4). In 2011, he corresponded with the Senate’s Standing Committee on Legal and Constitutional Affairs, which has published his notable letter dated 24 February 2011, by way of a submission by him to the Committee’s inquiry into provisions of the Water Act. The whole letter is instructive, as might be expected. The following extracts pungently address the triple bottom line myth, expressing conclusions which command agreement. (As opposed to some other conclusions expressed in his letter, where Professor Briscoe is arguably too pessimistic, concerning in particular the aptness of the Water Act itself. 
The letter, to repeat, deserves re-reading.)

The substance of the Act 2: Balance between the environment and human uses

There are claims that the Water Act of 2007 was not an environmental act but one that mandated balance between the environment and human uses. Digging deep into the turgid 236 pages of the Water Act for confirmatory phrases, the Honorable Malcolm Turnbull claims, now, that the Act was all about balance.

To a disinterested reader this is poppycock. The National Productivity Commission’s interpretation of the Water Act (2007) is that “it requires the Murray-Darling basin Authority to determine environmental water needs based on scientific information, but precludes consideration of economic and social costs in deciding the extent to which these needs should be met”. Similarly, the High-Level Review Panel for the Murray Darling Basin Plan (of which I was a member) stated that “The driving value of the Act is that a triple-bottom-line approach (environment, economic, social) is replaced by one in which environment becomes the overriding objective, with the social and economic spheres required to “do the best they can” with whatever is left once environmental needs are addressed.”

This interpretation was also very clearly (and reasonably, in my view) the interpretation taken by the Board and Management of the MDBA in developing the Guide to the Basin Plan. This was transmitted unambiguously to the members of the High-Level Review Panel for the Murray Darling Basin Plan.

(As an aside, I have wondered whether this logic is derived from (a) a belief that this is the right thing to do or (b) an understanding that this was the only constitutionally-defensible approach given that state powers were being abrogated in the name of meeting the Commonwealth’s Ramsar obligations.)

The substance of the Act 3: The roles of science and politics

The Act is based on an extraordinary logic, namely that science will determine what the environment needs and that the task for government (including the MDBA) is then just to “do what science tells it to do”. 

In the deliberations of the High Level Review Panel, we pointed out that, taken literally, this would mean that 100% of the flows of the Basin would have to go to the environment, because the native environment had arisen before man started developing the basin. The absurdity of this point was to drive home the reality — that the Murray is one of the most heavily plumbed river basins in the world, and that the real choice was to decide which set of managed (not natural) environmental (and other) outcomes were most desirable.

The job of science in such an instance is to map out options, indicating clearly the enormous uncertainties that underlie any scenario linking water and environmental outcomes. In its final report, the High-Level Review Panel stated: 

Far from being “value neutral”, a set of value judgements are fundamental to the aspirations of all Acts, including the Water Act. … It is a fundamental tenet of good governance that the scientists produce facts and the government decides on values and makes choices. We are concerned that scientists in the MDBA, who are working to develop “the facts”, may feel that they are expected to trim those so that “the sustainable diversion limit” will be one that is politically acceptable. We strongly believe that this is not only inconsistent with the basic tenets of good governance, but that it is not consistent with the letter of the Act. We equally strongly believe that government needs to make the necessary tradeoffs and value judgements, and needs to be explicit about these, assume responsibility and make the rationale behind these judgements transparent to the public.

A basis in science The crucial steps of setting a SDL, which governs its localized component parts, and observing its mandatory reflection of the ESLT, are among the most important decisions called for by the Water Act. They are forbidden to be politically dictated, say, by Ministerial directions (eg para 48(5)(b)). Their nature is ‘factual or scientific’, and so they are to be addressed as the Water Act requires for such matters.

That is, both the MDBA and the Minister, who between them are statutorily responsible for making the Basin Plan, ‘must … act on the basis of the best available scientific knowledge’ (para 21(4)(b)). As appears throughout this report, this is a serious and fundamental requirement that it appears has most regrettably not been consistently obeyed (see Chapters 3, 4, 5, 7, 9 and 10). It is most certainly not some obscure technical point that could excite only administrative lawyers.
To the contrary, the invocation of science, with the strong epithet ‘best’ to qualify it, brings in its train the demanding and self-critical traditions of empirical enquiry. It definitionally recognizes the provisional and improvable quality of the state of art. It proceeds by testing, and thus needs exposure and debate. Above all, it shuns the ipse dixit of unexplained, unattributed, blank assertions, such as too often emanate at crucial junctures from the MDBA.6 Perhaps the MDBA was not entirely responsible for this ‘aberration’, as Professor Briscoe described it in his letter to the Senate Committee. He suggested it resulted from the ‘institutional power concentration’ created by the Water Act.

Leaving blame aside, it can be readily accepted that Professor Briscoe described in 2011 what he had experienced, and what has continued far too much and for far too long. That is, the highly secretive ‘we will run the numbers and the science behind closed doors and then tell you the result’ MDBA Basin Plan process that Professor Briscoe scorned as ‘the Commonwealth-bureaucrats-and-scientists-know-better-than-states-andcommunities-and-farmers-do model’. He deplored the excessive MDBA ‘confidentiality’ process, which meant ‘there was very little recourse in the process to the immense worldleading knowledge of water management that had developed in Australia during the last 20 years’. He wrote, ‘time and again I heard from professionals, community leaders, farmers and State politicians who had made Australia the widely acknowledged world leaders in arid zone water management that they were excluded from the process’……. [my yellow highlighting]

Recommendations

1. New determinations of the ESLTs, and SDLs for both surface water and groundwater that reflect those ESLTs, should be carried out promptly. Those determinations must be made lawfully — that is, according to the proper construction of the Water Act as outlined in Chapter 3. Those determinations must:

a. be made on the basis of a proper construction of the Water Act, rather than using a triple bottom line approach

b. ensure that each water resource area’s ESLT is correctly determined based on the best available science, including for floodplains, and accordingly is reflected in the Basin-wide ESLT

c. result in an ESLT that ensures Australia fulfils its obligations under the treaties referred to in the Water Act

d. ensure there is no ‘compromise’ to the key environmental assets and ecosystem functions of the Basin — it must restore and protect those that are degraded

e. be made on the basis of the best available scientific knowledge, and by taking into account ESD, including climate change projections

f. be made in such a manner that all of the processes, decision-making and modelling that underpin the determinations are fully disclosed and subject to scientific peer-review and consultation with the broader public.

2. Those determinations will require a greater recovery amount than that which has already been recovered. In order to achieve a higher recovery amount, additional water will need to be purchased by the government and held by the CEWH. That water should be purchased through buybacks.

 3. The MDBA — or some other appropriately funded body — should be required to urgently conduct a review of climate change risks to the whole of the Basin, based on the best available scientific knowledge. This should be incorporated into the determination of the ESLT. 4. A Commonwealth Climate Change Research and Adaptation Authority should be established. This Authority must be independent of government. It should be appropriately funded so that it can properly conduct research into climate change, and formulate plans and give guidance on how the Basin (and other) communities can best adapt to climate change.

There are 44 recommendations in the Commissioner’s report in total and the full report cane be read here.

BACKGROUND

Hard right ideology, ignorance, politics and the greed of irrigators on display over the years.

The Courier, 15 December 2011:

Opposition Leader [and Liberal MP for Warringah] Tony Abbott has given his strongest indication yet he will block the Labor government's Murray Darling Basin plan, telling a rowdy meeting of irrigators near Griffith the Coalition would "not support a bad plan"…...
The meeting, for which most businesses in Griffith shut down for the morning so workers could attend, was the fourth public consultation meeting for the Murray Darling plan, which aims to return water from irrigation back to the ailing river system to boost its environmental health….
The scale of irrigators' anger was made clear by a string of speakers who said towns such as Griffith would be battered by the basin authority's plan to return 2750 gigalitres of water to the river system from irrigators.

 Farm Online, 2 November 2012:

NATIONALS Riverina MP Michael McCormack [now Deputy Prime Minister of Australia] says he's prepared to cross the floor and vote against the Murray-Darling Basin Plan if it takes away 2750 gigalitres from primary production for environmental purposes.
Rural communities and farming stakeholder groups have demanded a final Basin Plan that balances economic and social outcomes in equal consideration with environmental concerns….
"I won't be voting in favour of 2750GL coming out of the (Murray-Darling Basin) system, given the amount of water that's already been bought out of the system.
"I won't be abstaining - I'll be voting against it."

The Guardian, 27 July 2017:

Barnaby Joyce [Nationals MP for New England and then Deputy Prime Minister] has told a pub in a Victorian irrigation district that the Four Corners program which raised allegations of water theft was about taking more water from irrigators and shutting down towns.
The deputy prime minister, agriculture and water minister told a gathering at a Hotel Australia in Shepparton that he had given water back to agriculture through the Murray Darling Basin plan so the “greenies were not running the show”. 
“We have taken water, put it back into agriculture, so we could look after you and make sure we don’t have the greenies running the show basically sending you out the back door, and that was a hard ask,” he said in comments reported by the ABC.
 “A couple of nights ago on Four Corners, you know what that’s all about? It’s about them trying to take more water off you, trying to create a calamity. A calamity for which the solution is to take more water off you, shut more of your towns down.”


Winter rainfall and streamflow in the southern Basin have declined since the mid-1990s and the Basin has warmed by around a degree since 1910. The Basin is likely to experience significant changes in water availability due to human-caused climate change, particularly in the southern Basin where annual rainfall is projected to change by -11 to +5% by 2030. Any reduction in precipitation is likely to have significant impacts on water flows in rivers, in some cases driving a threefold reduction in runoff, with implications for water recovery under the Basin Plan.

Farm Online, 27 November 2017:

PRIME Minister [and then Liberal MP for Wentworth] Malcolm Turnbull says the SA government’s Royal Commission into the Murray Darling Basin Plan is picking an “expensive fight” with the federal government and upstream Basin States while examining ground that’s already been “very well tilled”.
Mr Turnbull - the acting Agriculture and Water Resources Minister in Barnaby Joyce’s absence - spoke to media yesterday after SA Premier Jay Weatherill and the state’s Water Minister Ian Hunter revealed they would forge ahead with the Commission inquiry into water monitoring and compliance issues in the $13 billion Basin Plan.


News.com.au, 8 March 2018:

A MAJOR cotton grower is among five people charged for allegedly stealing water from the Murray-Darling Basin.
Prominent irrigator Peter Harris and his wife Jane Harris, who farm cotton in NSW’s north-west have been accused of taking water when the flow did not permit it and breaching licence conditions.
WaterNSW on Thursday said it had begun prosecutions after investigating water management rule breaches.
Three other members of a prominent family have also been accused of theft.
WaterNSW alleges Anthony Barlow, Frederick Barlow and Margaret Barlow were pumping during an embargo and pumping while metering equipment was not working.
The maximum penalty for each of the offences is $247,500.
The prosecutions were announced only moments before the NSW Ombudsman released a damning report saying the WaterNSW had provided the government with incorrect figures on enforcement actions.
In a special report, the NSW Ombudsman said WaterNSW had wrongly claimed to have issued 105 penalty infringements notices and to have initiated 12 prosecutions between July 2017 and November 2017. In fact, no prosecutions had begun nor penalty notices issued during the period.

The Weekly Times, 19 December 2018:

Cohuna irrigator Max Fehring said a push to recover another 450GL would simply mean having to shut down some irrigation areas.
“The environment push is out of control, with no connection to the community impacts,” Mr Fehring said. “You just can’t keep taking water.”
Finley irrigator Waander van Beek said draining water from the Riverina had reduced the reliability of supply from about 85 per cent down to 55 per cent.
Mr van Beek’s wife, Pam, said the district’s irrigators were also angered to see their South Australian colleagues gaining 100 per cent of their allocations, while they got nothing in NSW.
Others were angered by what they see as a waste of water flowing down the Murray to fill South Australia’s Lower Lakes.

ABC News, 29 January 2019:

Recent fish kills in western New South Wales have put Australia's Murray-Darling Basin Planback in the headlines.

However, it has been at the forefront of some of Australia's top legal minds for the past 12 months, with the South Australian Murray-Darling Basin Royal Commission putting it under the microscope.......

What is the Murray-Darling Basin Plan?

Management of Australia's biggest water resource has been contentious since before federation.

History was made in 2012, when Queensland, New South Wales, the ACT, Victoria and South Australia signed up to the national plan, but it remains controversial.

Some believe it does not provide enough flows to protect the environment, while communities dependent on irrigation say it threatens their economic future.
Why did SA decide to hold a royal commission?

In 2017, an ABC Four Corners investigation uncovered irrigators in New South Wales were taking billions of litres of water earmarked for the environment.

A subsequent report found poor levels of enforcement and a lack of transparency surrounding water management in New South Wales and Queensland.
That sparked outcry in South Australia, at the very end of the system and often the first place to feel the impact of low water flows.

Then premier Jay Weatherill said the report did not go far enough, and needed more detailed findings about individuals who had committed water theft.

He announced the Labor government would launch a royal commission.

Key players didn't give evidence

The SA Government came out swinging with its royal commission, but it didn't take long for it to beencumbered.


That included Murray-Darling Basin Authority (MDBA) staff, who are responsible for implementing the plan.

The Federal Government argued it was a longstanding legal precedent that state-based royal commissions did not have the power to compel federal witnesses.

Evidence of mismanagement and fraud revealed

While the royal commission could not hear evidence from current MDBA staff, it did hear from some former senior employees.

They included David Bell, who at one stage was responsible for setting an environmentally-sustainable level of water extraction.

He told the inquiry the amount of water set aside for the environment became a political decision, rather than a scientific one.

The 2010 'Guide to the proposed Basin Plan' recommended 6,900 gigalitres of water would need to be returned to the system for there to be a 'low uncertainty' of achieving environmental outcomes.

In the final 2012 plan, 2,750 gigalitres were allocated.

It also heard from Dr Matt Colloff, a now retired CSIRO scientist who was part of a team that worked on a report into the plan.


In his closing submission to the royal commission, counsel assisting Richard Beasley SC said that by taking social and economic factors into consideration when setting environmental flows, the MDBA had erred.

"The Murray-Darling Basin Authority has misinterpreted the Water Act, not in a minor way, not in an unimportant way, in a crucial way," he said.

"That's not only error, or worse than error, it's a massive one with regrettable consequences for the lawfulness of that part of the Basin Plan."
>
Read the full article here.

Sunday 20 January 2019

South Australian Liberal Government attempting to erase state Royal Commission into the Murray-Darling Basin from memory




However this Royal Commission did not convene until after the March 2018 South Australian general election at which time a Liberal Government was in power.

This same Liberal Government headed by SA Premier and Liberal MP for Dunstan Steven Marshall is now trying to come to the aid of the beleaguered Berejiklian and Morrison governments (facing their own elections in March and May 2019) by attempting to make Royal Commission correspondence, hearing transcripts and final report fade from view as soon as possible.

This move is not going down well with the Royal Commission.......

Murray-Darling Basin Royal Commission Report update

18 January 2019

The Murray-Darling Basin Royal Commission report is being finalised to deliver to the South Australian Governor by 1 February, 2019.

There has been an exchange between the Commissioner, Bret Walker SC, and the Attorney-General’s Department (AGD) in relation to the public release of the report.

The AGD indicated on 17 January 2019 that the Commissioner’s report will be made available on the website for the Department for Environment and Water. The Commission has also been advised that the Commission’s website (containing transcripts of hearings, Commission exhibits, and other documents) will remain “live” until 30 March 2019, following which an archived copy of the website will be held by the National Library.

By way of response dated 18 January 2019, the Commissioner:

ADVISED that the report should be released immediately after delivery to the Governor as the “public interest demands it”;

CALLED for the Commission’s website to remain available to the public for a year after release of the report to provide key background information and permit full understanding of the Commission’s report, and

ADVISED he would be willing to accept a limited extension of time for the Commission to consider and report on the recent issues concerning fish kills in the Lower Darling River.

The Commissioner said that “the public expenditure on the Basin Plan (and this Commission) is such that the only legitimate expectation is that my findings, conclusions, recommendations and the reasons for them should all be available to be read, considered and criticised, once I have delivered the report ... The national implications of the report’s subject matter are also a reason for the report to be made available for consideration and criticism without delay”.

The relevant correspondence is attached.

Level 9 East, 50 Grenfell Street, Adelaide SA 5000
For more information please contact:
GPO Box 1445, Adelaide SA 5001
Catherine Hockley Email: mdbroyalcommission@mdbrc.sa.gov.au
Media/Communications Adviser Telephone: 8207 1483
Email: Catherine.hockley@mdbrc.sa.gov.au Toll free: (from landlines) 1800 842 817

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

See the correspondence here
South Australian Attorney-General Vickie Chapman has responded to the Commissioner's letter. See the correspondence here