by Lauren ‘LJ’ Butler, Assistant Editor, Utility magazine
In a sunburnt land of both drought and floods, water is the life-blood of many Australian communities – and its absence and mismanagement have devastating consequences for townships, farms, tourism and the Traditional Owners of the Land. The Murray Darling Basin Royal Commission Report found that the Murray Darling Basin Plan, which endeavoured to address allocation issues in the basin, must be strengthened in several areas if it is to effectively manage water resources.
The Murray-Darling river system takes in 23 rivers, supports more than four million people and stretches across South Australia, Victoria, New South Wales and Queensland. The health of the Basin has steadily declined over recent decades however, with droughts, agriculture and manufacturing having an increasing impact on water quality and supply.
The Murray Darling Basin Plan (The Plan) was introduced in 2012 to deal with ongoing issues surrounding water sharing between irrigation and other purposes in the basin, and acts as “a strategy for managing water resources in the Basin through adaptive management”. However, continued water decline led to a royal commission into the Murray-Darling Basin Plan being undertaken from January 2018, with the Commissioner’s Report delivered on 29 January 2019.
The investigation into the Murray-Darling Basin Plan was prompted by allegations of water theft by New South Wales cotton farmers, which were brought to the attention of the general public following a televised ABC Four Corners investigation in 2017. Then premier of South Australia, Jay Weatherill, wanted more detailed findings on the individuals who had committed water theft and announced that the State Government would launch a royal commission.
In June 2018, the Federal Government launched injunction proceedings in the High Court to prevent any Commonwealth public servants from giving evidence, including Murray-Darling Basin Authority (MDBA) staff, who are responsible for implementing the Plan. This was upheld, although the royal commission did hear from some former senior MDBA employees, including David Bell and Dr Matt Colloff.
A series of mass fish kills in December 2018 and January 2019, in which hundreds of thousands of native fish died near Menindee in New South Wales, raised further questions about the management of the Murray-Darling River system by authorities.
The Murray Darling Basin Royal Commission Report (The Report), delivered by Commissioner Bret Walker, is 756 pages long and makes 44 recommendations to the South Australian Government. With a total of 111 findings, the in-depth review found significant concerns with the Murray Darling Basin Plan.
Key findings of the Report
According to the Report, climate change has not been adequately considered by the MDBA under the Murray-Darling Basin Plan.
The Report states, “The best available scientific knowledge developed worldwide continues to point toward significant warming in the Southern Basin to 2030 and beyond, and a significant, if not catastrophic, reduction in run-off depending on global greenhouse gas emission scenarios.”
In 2009, the Commonwealth Scientific and Industrial Research Organisation (CSIRO) advised the MDBA that it should consider the recent climate of the past ten to 20 years, as well as climate change projections. The Report found that this advice was ignored by the MDBA, which is what Commissioner Walker specifically referred to as “negligence and maladministration”.
The Report confirms that it agrees with the view of the CSIRO at the time, and that limited inclusion of climate change projections was not scientifically defensible.
The Commissioner also found that not taking climate change into account when setting sustainable diversion limits (SDLs) has been detrimental to the Plan’s ability to achieve the objectives set in the 2007 Water Act.
Both the Water Act 2007 and the Plan contain provisions referring to the interests of Aboriginal Australians in relation to the Basin’s water resources. However, the Report acknowledges that there is limited understanding in the wider Australian community of the importance of these water resources to their Traditional Owners.
In the Report, the Commissioner acknowledged that a stronger legal platform for the role of Aboriginal Australians in managing Basin water resources is necessary, and would require an amendment of the Water Act to ensure higher standards of recognition.
The Report found that meaningful consultation with Aboriginal Australians is of utmost importance, particularly given that “the overwhelming evidence of the basin’s Traditional Owners is that its waterscape is intrinsic to their cultural identity”.
Water resource plans
An important aspect of the Royal Commission was to investigate the progress of preparing Water Resource Plans (WRPs) for the Basin. These plans are for the purpose of achieving the SDLs, which set limits on the amount of water that can be extracted for consumptive use so that the Basin can support strong and vibrant communities, resilient industries (including food and fibre production) and a healthy environment.
The Report found that one primary concern is that the WRPs do not reflect environmentally sustainable levels of take (ESLTs) determined in accordance with either the requirements of the Water Act, or the best available science.
“It is a matter of lively concern that two Basin States (Victoria and New South Wales) should be perceived by the MDBA to have displayed a lack of full commitment to a process that is required by law and is so fundamental to the success of the Water Act and the Plan,” the Report states.
It also found that New South Wales in particular, has suffered from staff turnover and departmental restructuring, which may have contributed to a lack of commitment to the Plan.
Environmentally sustainable level of take
The SDLs, under the Plan, were outlined on a ‘triple bottom line’ approach, which sought to limit the use of the Basin’s water resources in a way that would balance economic, social and environmental needs. At the time of implementation, this brought about discussion around whether this violated the requirements of the Water Act and made the Basin Plan unlawful.
The Report found that there is no legislative need for a triple bottom line framework, concerning the setting of an SDL, despite the MDBA claiming otherwise.
“That phrase is an inappropriate figure of speech or political slogan that the MDBA has unwisely adopted. Any optimisation of environmental, social and economic outcomes must come later,” the Report states.
It also says that politics, rather than science, is what ultimately drove the setting of the Basin-wide SDL and a water recovery figure of 2750GL.
“The recovery amount had to start with a two. This was not a scientific determination, but one made by senior management and the Board of the MDBA. It is an unlawful approach. It is maladministration,” the Commissioner said in the Report.
Evidence received by the Commissioner led to one of the more positive findings of the Report.
“The water recovery program and environmental watering undertaken since the introduction of the Plan has helped to improve the health of the Basin’s ecosystems,” the Report states.
However, while the Commissioner acknowledged the positive environmental outcomes in some water resource areas, he also stated that it is still early days in a very long-term strategy.
“In ecological terms, the full implications of responses to environmental watering are simply not possible to determine in the short term, and in any event require very careful expert assessment and interpretation.
“In light of the independent expert evidence referred to above, the Commissioner is concerned that some reports of results by the MDBA are eliding inauspicious results in order to present a falsely positive picture.”
When it comes to groundwater, the Report suggests that there has been insufficient effort to better understand the complex hydrogeology of the Basin’s groundwater resources. This means that the true potential of this resource may not have been recognised.
The Royal Commission Report found that substantive regulatory reform to address the environmental mismanagement of the Basin’s water resources has historically occurred only when severe ecological decline has made it clear that such reform is urgently required.
The Commissioner stated that regulatory complacency over a resource that is difficult to measure, combined with a lack of investment in scientific research, has placed groundwater resources at considerable risk, which may manifest over many decades.
Recommendations of the Report
The 44 recommendations in the Report are made specifically to the South Australian Government. For the recommendations to be followed or adopted, the South Australian Government will need to convince the relevant Commonwealth Minister, or the other Basin State Governments and the MDBA, to take action.
The Report includes recommendations for amendments to be made to the Plan so that they are lawful, as well as to the Water Act 2007.
Some of the key recommendations to come out of the Royal Commission Report include:
Making environmental sustainability a higher priority
Addressing the ongoing impacts of climate change
A more scientific approach to the Murray-Darling Basin Plan
Acquiring more water for the environment by directly purchasing from farmers
Meeting the water requirements of the Basin’s 40 Aboriginal nations
Improving monitoring and compliance of Murray-Darling Basin Plan implementation
Ensuring that state governments produce competent subsidiary plans, complying with agreements to remove constraints to floodplain wetlands
Responses to the Report
According to the Premier of South Australia, Steven Marshall, the Report largely focuses on events, actions and decisions of previous governments; however, he says that the current South Australian Government will commit to implement the full Murray-Darling Basin Plan.
“We will demand every drop of the 3200GL of environmental flow agreed by the Commonwealth and Basin States in 2012 be delivered,” Mr Marshall said.
“The health of the Murray-Darling Basin is critically important, particularly to the tens of thousands of South Australians who live and work along the River Murray.”
He also noted that when the Royal Commission was announced by the former state Labor government, South Australians were told that the key focus of the Commission would be to investigate allegations of water theft in the Murray-Darling Basin, but that this was “not by any means the focus of the inquiry”.
The Murray-Darling Basin Authority has also published a response to the final Report. Chief Executive of MDBA, Phillip Glyde, said that he rejects the key criticisms contained in the Report and denies that the MDBA is guilty of maladministration or of acting unlawfully.
“On behalf of the MDBA, I reject those conclusions in the strongest possible terms. We haven’t broken the law,” Mr Glyde said.
“In the three years I’ve been head of the MDBA, I can say the 280 staff who work with me have worked diligently and with integrity.
“The accusations in relation to acting unlawfully appear to stem from a difference in opinion about the policy intent of this critically important water reform. The Commissioner has one view, and the Commonwealth has another.
“There are no findings of direct misconduct or illegality directed at any single person. If anyone has information, I urge them to contact authorities, or the Public Service Commissioner. As a result, I believe that to bring into question the work of the Authority and its staff on this basis cannot be justified.”
He also noted that while Commissioner Walker has called for an overhaul of the Plan, there is not a call for the Plan to be abandoned.
“The findings of maladministration relate to the work of the Authority in setting Sustainable Diversion Limits, that is the amount of water that may be used by communities and agriculture,” Mr Glyde said.
“Those decisions were made at the time the Plan was legislated and received bipartisan support, and the support of five state and territory governments. The figures were based on best available science and scientific advice.
“The Plan is a world-class policy that will take 12 years to fully implement, and aims to share the limited water resources in the Basin fairly between all interests – the environment, agriculture, industry, Aboriginal communities and the 2.6 million people who live in its towns and communities.”
Mr Glyde also rejected the accusation that the MDBA has ignored climate change and dismissed climate advice from the CSIRO.
“The MDBA has always considered the impacts of climate change, and has been guided by the best possible advice from the CSIRO,” Mr Glyde said.
“As the Plan was being developed, the MDBA used climate data going back 112 years, which covered the full range of the climate changes modelled by the CSIRO.”
He did, however, state that the MDBA recognises that more work is needed to improve understanding of how climate change risks will affect the Basin, and that the Plan will be adapted to meet these challenges.
“This Plan is a world-leading opportunity to protect our iconic rivers, and maintain our nation’s food bowl, which provides 40 per cent of Australia’s food and fibre, and to ensure the Basin’s water is managed sustainably for current and future generations. We are half-way into implementing the Plan. We can’t overturn the impacts of 100 years of water overuse in a few short years.”
With the Report published and in the hands of law and policy makers, as well as the MDBA, it is now the responsibility of government to take into account the Report’s findings, and implement or reject its 44 recommendations.