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The Murray-Darling Basin Plan controversy

26 July 2017

#Planning, Environment & Sustainability

Dr Joseph Monaghan

Published by Dr Joseph Monaghan

The Murray-Darling Basin Plan controversy

Monday night’s Four Corners program ‘Pumped: Who is benefitting from the billions spent on the Murray-Darling’ contained a number of allegations which suggest that the Murray-Darling Basin Plan is being undermined. The NSW Government has since announced an inquiry in relation to the allegations. Of the many allegations made in the program, one which stood out in particular was a ‘Plan B’ discussed between a senior water bureaucrat and irrigators, which was for the State of NSW to walk away from the Basin Plan altogether. Since the Four Corners program, the NSW Government has announced its reaffirmed commitment to the plan, but questions are likely to remain as to how firm that commitment really is under a scheme that involves balancing the interests of the basin as a whole and the potentially competing interests of NSW, Victoria, Queensland, the ACT and South Australia.

Controversy over the Murray-Darling Basin is nothing new. Debates have raged since before federation about how the basin should be managed. One which stands out was over the 2010 Guide to the Basin Plan. When the Guide was released, it proposed 3000–7600 GL/year of surface water to be taken out of consumptive use for the environment. The Chair of the Murray-Darling Basin Authority (MDBA) maintained that this level of environmental water was what was required for the Basin Plan to properly accord with the requirements of the Water Act 2007 (Cth). The environment needed to be prioritised because the Commonwealth’s powers to pass the Water Act 2007 (Cth) were based primarily upon the external affairs power under the Constitution and the implementation of a series of international environmental treaties.

Irrigators were outraged and 800 farmers drove their tractors in convoy to the South Australian township of Renmark in protest. They claimed the Guide would turn Riverland communities into ‘ghost towns’. 5000 farmers and others protested in Griffith where copies of the Guide were burnt.

Source: Picture by Nathan Edwards reproduced in J Kelly, ‘Murray-Darling Guide Fails to Sufficiently Consider Human Cost, Says Simon Crean’, The Australian, 15 October 2010.

Both sides of politics began to question whether the MDBA’s interpretation of the Water Act 2007 (Cth) was correct. Under pressure, the MDBA Chair resigned. His replacement announced that he disagreed with the former MDBA Chair’s interpretation of the Water Act 2007 (Cth), and that the Water Act 2007 (Cth) did not require a Basin Plan that prioritised the environment. The MDBA went on to prepare the Basin Plan on the basis that environmental, social and economic issues are ‘balanced’. This plan required 2750 GL/year to be taken out of consumptive use for the environment and this plan is the one which has since been adopted by the Federal Water Minister as the Murray-Darling Basin Plan under the Water Act 2007 (Cth). 

It is not surprising that irrigators opposed the Guide given that the proposals in the Guide may have brought about major social and economic change in rural communities including job losses predicted by MDBA modelling. On the other hand, the success of irrigators in opposing the Guide will count for little if longer term predictions by the CSIRO turn out to be accurate about the unsustainability of the Murray-Darling Basin. There is also a legal question as to whether the former Chair of the MDBA was in fact correct in his interpretation of the requirements of the Water Act 2007 (Cth), because if this were the case, it raises the question as to whether the Basin Plan that we now have is unlawful.

Author: Joseph Monaghan
* Joseph Monaghan is a partner at Holding Redlich who practices in environmental and water law. He is in the final stages of a doctorate degree in law on the Murray-Darling Basin Plan.

Joseph Monaghan, Partner 
T: +61 3 9321 9857 

Breellen Warry, Partner 
T: +61 2 8083 0420

Peter Holt, Special Counsel
T: +61 2 8083 0421

Gerard Timbs, Partner
T: +61 7 3135 0644

Jenny Humphris, Partner
T: +61 7 3135 0690 

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Dr Joseph Monaghan

Published by Dr Joseph Monaghan

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