The Murray-Darling Basin Plan and associated controversy continues to make news.
The most recent controversy involving the Murray-Darling Basin Plan (Basin Plan) concerns allegations that the science behind the Basin Plan is based on the work of three South Australian researchers who altered their past findings to back the claim that Lake Alexandrina has been fresh for the past 7000 years 1. If that were the case, it would seem to the writer that this raises a question as to the lawfulness of the Basin Plan.
This follows the recent ABC Four Corners program 'Cash Splash', which looked at the alleged waste of taxpayer money under the multi-billion plan, which we covered in our previous article on this topic.
Interestingly, the ABC Four Corners program itself received criticisms in that week's episode of ABC Media Watch, which stated that 'Cash Splash' had not presented a fair and balanced review in its reporting. Media Watch highlighted the failure by Four Corners to mention that a vast amount of water for the environment, some 700 billion litres was not even mentioned on the program, nor was the fact that agriculture takes around 20 per cent less water than it did a decade ago, whereas at times Four Corners implied the opposite. Media Watch also noted that Four Corners had 12 interviewees criticising the scheme, and just one defending it 2.
This is on the back of the South Australian Murray-Darling Basin Royal Commission report delivered to the South Australian Government on 29 January 2019, which relevantly found:
The Royal Commission was highly critical in relation to what it saw as a disconnect between claimed openness and accountability on the part of the Murray-Darling Basin Authority (MDBA), and actual openness and accountability in the conduct of MDBA. The Commissioner found maladministration by previous and current senior management of the MDBA.
- Climate change
Climate change had not been considered by the MDBA in relation to the setting of the Sustainable Diversion Limits under the Basin Plan. The MDBA had ignored advice from the CSIRO in relation to climate change.
- Environmentally Sustainable Level of Take (ESLT)
The process for determining the Basin-wide ESLT was undermined by an incorrect construction of the Water Act 2007 (Cth), in particular the term ESLT. The MDBA has impermissibly adopted a so-called triple bottom line approach.
- Water Resource Plans (WRPs)
WRPs have been delayed as a result of a lack of commitment to the Basin Plan by the States of Victoria and New South Wales, and by a lack of proper resourcing.
Where to next?
In the writer's opinion it is increasingly clear that a Federal Royal Commission is required in relation to the Basin Plan.
Prior to this year's Federal Election the ALP announced that if it won Government it would establish a Commission of Inquiry into the 2017 purchase of certain water entitlements?under the Royal Commissions Act.
The Coalition made no such commitment prior to the Federal Election and those plans have not changed.
More recently, Senator Sarah Hanson-Young advocated a Royal Commission and introduced into Federal Parliament the Murray-Darling Basin Commission of Inquiry Bill 2019 however the second reading speech to that Bill does not record that it received support from the House of Representatives 3.
In the writer's opinion a Federal Royal Commission is key to ensuring meaningful engagement by each of the Basin States and the Commonwealth in the Royal Commission process (by contrast with the recent South Australian Royal Commission) and is substantively needed to address seriously held community and environmental concerns that will only continue to arise.
Dr Joseph Monaghan is a planning and environmental law partner at Holding Redlich. In 2017 he was awarded his doctoral degree in law for his thesis titled 'Law and policy of the Murray-Darling Basin'.
2 https://www.abc.net.au/mediawatch/podcast/ (Episode 23)
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.