Australia’s failure to regulate flood plain harvesting was “a real embarrassment”, but whether it was an illegal would depend on case by case circumstances, the former chair of South Australia’s royal commission into the Murray-Darling basin plan has told a New South Wales parliamentary committee.
In scathing comments to the inquiry into the NSW government’s plan to licence flood plain harvesting, Bret Walker SC, one of the nation’s most highly regarded lawyers, said the failure of eastern states to address flood plain harvesting over the last 100 years was inconsistent with proper management of a valuable public natural resource.
Flood plain harvesting, done mainly in western NSW, involves farmers capturing flood waters that are flowing across their land into large on-farm storages.
Modern farming methods, including laser levelling and building levees and channels to capture water, has led to a huge increase in the capture of flood waters, which has been blamed for up to 30% decline in inflows into the Murray-Darling river system.
The NSW government and irrigators have sized on Walker’s written advice to claim that he found the practice of flood plain harvesting to be legal. But Walker sought to clarify his remarks in his appearance.
Walker provided a narrow written opinion which said the Water Act did not create a specific offence of taking water through flood plain harvesting but on Friday he clarified that it did not specifically approve it either, and it might be an indirect offence if works were used to take the water, as is usually the case.
He also said that flood plain harvesting might not be legal take under the water laws at the critical date of 1994, the date the government proposes to use to allocate licences, based on historical practice.
Walker warned it might be possible for civil injunctions to be sought. This could set up a $2bn scramble over water rights, pitting the 500 odd farmers who floodplain harvest water in the north-west against the thousands of water rights holders in the Murray and the Murrumbidgee, who claim they are having their allocations affected by the lack of flows in the river system.
While most environmental groups agree that licensing flood plain harvesting is important, the lack of accurate data about the extent of water being taken and concerns about its legality has led to a major dispute over what amount should be licensed.
There is also dispute over how it should be accounted for in the “cap” which governs the amount of water each state can license farmers to extract from rivers under the Murray-Darling basin plan.
The NSW government has urged the upper house to pass the legislation quickly because it has had internal advice that the practice may now be illegal, putting some of the biggest agribusinesses at risk of prosecution. The crossbenchers and Labor blocked a makeshift solution earlier this year.
Walker was asked to give independent advice to a NSW legislative council committee about whether existing flood plain harvesting was an offence. He stressed that it was not possible to give definitive advice without having facts to fully explore legality of flood plain harvesting.
But he also described as “absurd” that flood plain harvesting should be viewed as part of the commons and that people could take as much as they wanted.
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The minister for water, Melinda Pavey, said that the written advice from Walker was “a seminal moment” and she hoped that the parliament could now get on with the licensing of water.
She said the debate had been muddied by lobbyists with vested interests for too long.
But members of the committee including the chair, the Greens’ Cate Faehrman said the minister had misunderstood the written advice.
Walker also criticised the Murray-Darling Basin Authority for its view that regulation of flood plain harvesting would not have any impact on the sustainable diversion limits (SDL) – the amount of water that can be extracted by agriculture under the plan.
The authority says in its 2019 policy on flood plain harvesting: “Any changes to the baseline diversion limits that result from better measurement and certainty around the volume of water taken by flood plain harvesting will not have an impact on the environmentally sustainable limits of take. This is because the updated estimates do not give additional access to water.”
Walker described this view as “very mischievous” which dodged the central question regarding the protection and rehabilitation of the river system and “whether we have been taking too much [water].”
The authority has refused to appear before the NSW inquiry.
The inquiry quizzed NSW water officials about emails, released to the Greens MP, Cate Faehrman under a call for papers. These appeared to indicate the bureaucrat’s awareness of the inadequacy of their modelling on flood plain harvesting.
In a March 2018 email, the chief modeller, Andrew Brown, said that a new model did not have “to be fit for purpose to qualify as best available information”.
Maryanne Slattery, a former basin official who now works as a consultant, claimed the emails suggested the government and the authority were “trying to hoodwink everybody” into allowing caps on water take to be exceeded.