Some home truth about the current Murray-Darling Basin Plan to remember as we enter into the morass of competeing claims in NSW State and Australian Federal election campaigns in the first half of this year....
IN THE MATTER OF THE
MURRAY-DARLING BASIN ROYAL COMMISSION, Adelaide South Australia, 23 October 2018:
MR R. BEASLEY SC, Senior
Counsel Assisting:
….Commissioner, the
Water Act and the Basin Plan have been hailed as ground-breaking reform. They
are. What this Commission has learnt, however, from the evidence it has
gathered, and from the witnesses that have informed us, is that it’s one thing
to enact transformative legislation like the Water Act and the Basin Plan, it’s
quite another thing to faithfully implement it. Sadly, the implementation of
the Basin Plan at crucial times has been characterised by a lack of attention
to the requirements of the Water Act and a near total lack of transparency in
an important sense.
Those matters have had,
and continue to have, a negative impact on the environment and probably the
economies of all the Basin Plan states but the state that will suffer the most
is the state at the end of the system, South Australia. The Water Act was a
giant national compromise. At its heart was a recognition that all of the Basin
states – Queensland, NSW, Victoria and South Australia – were taking too much
water from the system and had been for a long time. That, as a matter of
statutory fact in the Water Act, and as a matter of reality, has led to serious
degradation of the environment of the Basin. The Millennium Drought of 2000s
underscored the fact that, if nothing was done, over-allocation of the water
entitlements in the Basin would inevitably and quickly lead to irreversible
damage to the Basin environment.
The Water Act was a
response to that. It was the statutory means by which the process of
restoration and protection of environmental assets would begin. I say the Water
Act was a compromise because the Act contemplates that water will be taken from
our rivers and used consumptively for irrigation, the growing of crops and
permanent plants. Of course, also for human water needs. But it sets a limit.
That limit is that no more water can be taken beyond the point where key areas
of the environment and its ecosystems might be damaged. In an environment
that’s already degraded, that means the Water Act requires the environment to
have both enough water to restore degraded wetlands and the like and also, of
course, to maintain them.
That’s not just the
right thing to do. It’s what Australia’s international obligations require.
That task, setting a limit on the extraction of water, is to be based on the
best available science. Not guided by the best science, not informed by the
best science but based on the best available science. It also has to be
achieved by taking into account the well-known principles of ecologically
sustainable development. What the Commission has learnt from the evidence presented
to it is that the implementation of the Basin Plan, at crucial stages, has not
been based on the best available science. Further, ecologically sustainable
development has either been ignored or, in some cases, in relation to supply
measures, actually inverted.
I want to read to you a peer review of the
Guide to the Basin Plan from some international scientists in 2010 because it
demonstrates that they were well aware, even back then, of what was actually
going on in the early stages of drafting the Basin Plan. This is a peer review
report by Professor Gene Likens of the Cary Institute of Ecosystem Studies, Mr
Per Bertilsson of the Stockholm International Water Institute, Professor Asit
Biswas from the Third World Centre for Water Management and Professor John
Briscoe, Gordon McKay Professor from Harvard University. What they said was
this, in reviewing the Basin Plan, at page 34 of what became exhibit RCE38:
It is a fundamental tenet of good
governance that scientists produce facts and the government decides on values
and makes choices. We are concerned that scientists in the Murray-Darling Basin
Authority, who are working to develop the facts, may feel 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 Water Act. We equally strongly believe that government needs to make the
necessary trade-offs and value judgments and need to be explicit about these,
assume responsibility and make the rationale behind these judgments transparent
to the public.
If all the MDBA had been
done in the past eight years since that review was written is “trim the facts”,
that would be bad enough. But it’s worse than that. The implementation of the
Basin Plan has been marred by maladministration. By that I mean mismanagement
by those in charge of the task in the Basin Authority, its executives and its
board, and the consequent mismanagement of huge amounts of public funds. The
responsibility for that maladministration and mismanagement falls on both past
and current executives of the MDBA and its board. Again, while the whole of the
Basin environment has and will continue to suffer as a result of this, the
state whose environment will suffer the most is South Australia.
The principal task of
those implementing the Plan is to set the Basin-wide sustainable diversion
limit. How much water can be taken from the rivers before the environment
suffers? You’ve heard evidence that has been unchallenged that this task was
infected by deception, secrecy and is the political fix. The modelling it has
been said to have been based on is still not available seven years later. The
recent adjustment of the sustainable diversion limit by raising it by 605
gigalitres, on the evidence you’ve heard, is best described as a fraud on the
environment. That’s a phrase I used in opening. It was justified then. It’s
re-enforced by the evidence you’ve heard subsequently. The so-called 450
gigalitres of upwater, the water that the then South Australian Government
fought for, for this State’s environment, is highly unlikely to ever eventuate.
The constraints to the system are just one major problem in the delivery of
that water.
Like all aspects of the
implementation of the Basin Plan, efficiency measures or infrastructure
projects that form the basis of how the 450 gigalitres of water is to be attained,
and which are funded by public money, lack any reasonable form of transparency
and, as the Productivity Commission recently, and witnesses to this Commission,
have noted, are hugely more expensive and less reliable than purchasing water
entitlements. I will discuss this in detail but I will give you one quote from
an expert who can talk with real authority about the extra 450 gigalitres
proposed for South Australia under the Basin Plan. That’s the former
Commonwealth Environmental Water Holder, David Papps. In his evidence to you
said:
I would
bet my house that South Australia is not getting that water.
Mr Papps’ prediction
seems safe when one considers the proposed amendments to the Basin Plan by the
governments of NSW and Victoria concerning the 450 gigalitres that I will come
to shortly. Everything that I have just said to you is based on the views of
eminent scientists and other people who have given evidence and lodged
submissions. However, neither the Commonwealth Department of Agriculture and
Water, the Murray-Darling Basin Authority, or any Commonwealth government
agency has provided any answer to anything I have just said or to the evidence
before the Commission that I will refer to shortly. They have no answer. The
submissions provided to you very recently by the Murray-Darling Basin
Authority, and the DAWR, Department of Agriculture and Water Resources,
demonstrate, as did their unwillingness to give evidence, culminating in
proceedings to the High Court, that they do not have any answer.
The MDBA, you will
recall, were even too busy to meet you. The States also have no answer, as
demonstrated in their somewhat thin submissions to you, with the exception of
the South Australian Government. When I say the MDBA has no answer to the
expert evidence given in this Commission, I should emphasise also that it
clearly has no answer to the maladministration and unlawfulness of its
implementation of the Basin Plan. It is nevertheless a great pity that relevant
persons from the Basin Authority, and other Commonwealth agencies, were not
required to give answers to you under oath concerning the scientific evidence
the Commission gathered.
The opportunity may have
been there had the High Court decided those proceedings in your favour. I’m not
going to speculate on what the High Court would have done but, regrettably, the
South Australian Government chose not to extend your Commission in order to
provide you with the opportunity that may have been available to you to
question those relevant people. You made it clear to the South Australian
Government that was your strong preference. You advised them that the
Commission had potential witnesses that wanted to give important evidence,
evidence relevant to the South Australian environment, but only if they were
compelled by summons. In other words, they were too scared to talk about the
implementation of the Basin Plan without the force of a summons. Why the
Commission was not extended to explore these crucial matters is something upon
which you can draw inferences as you see fit. I will only say that it’s a great
opportunity lost……
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