 |
| 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 |
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.
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.
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."
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.
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”.
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.
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.
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?
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.
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.
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.
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.
