11 February 19 - In the News
Author: Joseph Monaghan
Publication: Water Source
Publication date: 11/02/19
Publisher: Australian Water Association
On 29 January, the South Australian Murray-Darling Basin Royal Commission, constituted by Bret Walker SC as Commissioner, delivered its almost 800-page report to the South Australian Government.
Here, planning and environmental lawyer Dr Joseph Monaghan summarises some of the key findings and asks whether a Federal Royal Commission is needed to achieve progress.
Climate change
The Commissioner found that climate change had not been considered by the Murray-Darling Basin Authority (MDBA) when setting Sustainable Diversion Limits (SDLs) under the Basin Plan.
SDLs limit how much water, on average, can be used in the Basin by communities, farmers and industry, while keeping the rivers and environment healthy.
Not taking climate change into account when setting SDLs was a fundamental problem from both a legal perspective and from the perspective of ensuring the Basin Plan achieved its environmental objectives laid out in the Water Act 2007.
In the course of investigating the climate change issue the Commissioner also said the MDBA had ignored advice from the CSIRO in relation to climate change.
Some of the Commissioner’s key findings include:
Environmentally Sustainable Level of Take (ESLT) interpretation
One of the debates that arose when the Basin Plan was prepared centred upon whether it was lawful and in accordance with Water Act requirements. The MDBA’s 2010 Guide to the proposed Basin Plan was prepared on the basis that the environment was prioritised in setting the SDLs, as required by the Water Act.
In contrast, the SDLs under the 2012 Basin Plan were set on the basis of a ‘triple bottom line’ approach. This, it was said by some at the time,[ii] contravened the requirements of the Water Act and made the Basin Plan unlawful.
These questions of statutory interpretation were considered by the Royal Commission, which found that parts of the Plan were in fact unlawful on the basis it was prepared in accordance with a triple bottom line approach.
Some of the Commissioner’s key findings:
With respect to groundwater SDLs, the Royal Commission found:
Buybacks and efficiency upgrades
Buybacks and efficiency upgrades are means by which the SDLs are achieved. The Commission compared the cost of buybacks and structural adjustment programs with the cost of infrastructure projects. It found that, from a cost perspective, buybacks and structural adjustment programs were significantly better.
The Commissioner said there was little evidence to support claims in relation to the mass exodus of people from farming where buybacks have been implemented:
Constraints
The Report also includes a chapter on ‘constraints’. This is anything that reduces the ability to deliver water for the environment, including physical restrictions – such as low-lying bridges, crossings or private land – as well as operational aspects like river rules or operating practices.
The Commissioner said a compensation scheme should be put in place for those affected by the removal of constraints:
Water Resource Plans
One of the terms of reference for the Royal Commission was to investigate the progress of Basin States (New South Wales, Victoria, the ACT, Queensland and South Australia) in preparing Water Resource Plans (WRPs).
WRPs are the plans by which Basin States say that they will achieve the SDLs. The states prepare WRPs for individual catchments, which are submitted for federal approval.
What progress have the Basin States made in relation to the preparation of WRPs over the past six years, given WRPs must be in place by 1 July 2019?
The Commissioner found:
Where to next?
The Report constitutes the most comprehensive analysis to date in relation to the Murray-Darling Basin Plan. The question now is what weight will law and policy makers, and the MDBA, give to the recommendations and findings? Some have already suggested the Royal Commission’s findings have fallen on deaf ears.
In my opinion, it may take a Federal Royal Commission for the recommendations and findings of the Royal Commission to drive change. Not because the South Australian Royal Commission was inadequate; to the contrary, the Royal Commission seems to have conducted itself with rigour and integrity.
Rather, it may be that a Federal Royal Commission is needed to ensure meaningful engagement by each of the Basin States and the Commonwealth in the Royal Commission process and its outcomes.
The MDBA’s response to the Royal Commission, which broadly rejects its criticisms, can be found here.
Read all our Murray-Darling Basin coverage here.
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