Law Assignment 3: Research Paper georgia pollard 1100017956Topic 4: Consider the draft Murray-Darling Basin Plan released October 2010 anddiscuss whether Commonwealth legislation requires environmental factors to begiven more weight than social and economic factors in the draft Plan.IntroductionThe Murray-Darling Basin Plan drafted by the Murray-Darling Basin Authority(MDBA) is a mandate of Commonwealth legislation, the Water Act 2007. Underlyingand specific sections of the Act require the Plan to give greater weight toenvironmental factors and consider the social and economic factors only to the extentof not restricting upon the environmental ones. Excessive consultation and overacceptance of negotiation and compromise by the MDBA may result in the Plan overconsidering the social and economic factors or having implementation of the Planstaggered back until it has little effect on the issue now. As recognised by theNational Water Commission, various environmental experts and the Greens Party, theMDB currently has too little water left in it under the disjointed management andneeds a strong environmentally based Plan to be implemented now and not be heldback by vetos, investigations, scare campaigns or interim measures.
Some background on the Murray-Darling Basin situationWater has always been an issue in the mostly semi-arid Australia. Even beforefederation, disagreement over water usage by the states with access to the MurrayRiver, New South Wales, Victoria and South Australia has been fierce. The onlysection in the Constitution (s.100) referring to conservation and irrigation in regardsto water was written as a judgement of, ‘reasonable use’. This ambiguous statementperfectly defines the level of decisiveness common on the issue of water usage andagreements for years onwards.Various attempts at agreements, commissions and strategies such as the MurrayWaters Agreement of 1914 and the Salinity and Drainage Strategy of 1989 weremade, but precise knowledge of the amount of water available during the river’snatural wet and dry periods combined with rates of usage along the whole system waslittle understood until 2005 when the Murray-Darling Basin Commission introduced acap on the volume of water allowed to be taken from the River for consumptive usesthough it was not enough to create a sustainable standard (MDB Ministerial Council2000).Transferral of certain powers from the basin states to the Australian Governmentresulted in the Water Act of 2007 creating the first independent agency to manage thecombined water resources of the MDB. The Murray-Darling Basin Authority is firstand foremost an environmental agency set up to create a Murray-Darling Basin Planthat combines hydrological and ecological data to readdress environmental waterissues (Taylor 2010).
The Guide to the MDB Plan was released first for consultation in October of 2010,the draft Plan will then be prepared and given to the MDB Ministerial Council forcomment. It will finally be passed on to the Minister for Sustainability, Environment,Water, Population and Community for adoption and tabling in Parliament (MBDA2008).The supporting legislationThe Water Act 2007 is the main legislation behind the MDBA and stipulates exactlywhat is required in the MDB Plan. As stated by Michael Taylor at the release of theGuide to the MDB draft Plan the Act requires the MDBA to identify key ecosystemsand environmental assets and determine how much water is necessary to bothmaintain and restore them to meet Australia’s international agreements. He went on tosay that by identifying how much water needs to be allocated to the environment thiswill also define how much will have to come from existing human and irrigation uses(Taylor 2010).Integrated independent management of the Murray-Darling Basin is necessary afteryears of over-allocation of water resources. It is estimated that 80% of the water in theMBD is diverted for consumption, 90% of which is used for irrigation (Brandon2010). As irrigation is the largest user of water from the Murray, it is logical to expectthe extra water necessary to maintain the environmental assets of the MDB to besubtracted from irrigation allowances.The specific sections of the Water Act pertaining to whether or not it requires theenvironment to be given more weight than social and economic factors in the draft
plan are examined as well as the underlying constitutional basis, in the Kildea andWilliams consultation submission. Section 21 of the Act is put forward as the mainobjective of the plan: to give effect to international agreements such as RAMSAR andthe Convention on Biological Diversity as defined in Section 21(1). Subsection 21(4)takes into account the relevance of both social and economic factors but is subject tosubsections (1), (2) and (3). Even the issue of providing for ‘critical human waterneeds’ is covered in the Amendment of s. 86A which states that regard will only begiven “without limiting section 21”.The Water Act reflects the federal Parliaments’ power in section 51(xxix) of theConstitution, to enact laws with respect to ‘external affairs’ as well as being able topass laws to implement obligations made in international treaties (See Commonwealthv Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1.). The submission goes furtherinto what giving effect to international treaties actually means, and reveals that themain obligations of both RAMSAR and the Convention of Biological Diversity arewritten to permit consideration to social and economical matters but not the point thatwould restrict implementation of such environmental obligations (Convention onBiological Diversity, Article 2).
The relevant International AgreementsThe Convention on Wetlands of International Importance, known as the RamsarConvention works for the conservation and wise use of wetlands and their resourcesaround the world. Australia became a Contracting Party in 1974 and has 64 verifiedRamsar wetlands. In the MDB, Ramsar wetlands cover 6,363 km2 (MDBA 2008),this means that enough water to support those wetlands must be made available toensure their health.‘Sustainable use’ has been defined by the Convention on Biological Diversity as, “theuse of components of biological diversity, thereby maintaining its potential to meetthe needs and aspirations of present and future generations.” (article 2). Thisdefinition supports the underlying idea that to meet the needs of current and futuregenerations we need to maintain the biological systems that sustain us.The Japanese Australia Migratory Bird Agreement (JAMBA) and the ChineseAustralia Migratory Bird Agreement (CAMBA) are International Agreements that hasAustralia committed to, to protect the environment particular migratory bird speciesdepend on. For example, the Coorong, which supports thirty-three species of bird,listed under international agreements (Vivasa 2010).
The extent to which the draft MDB Plan meets the Requirements of the WaterAct 2007Calculations and modelling of the impacts of various volumes of water recovered forenvironmental flows resulted in the Guide to the draft MDB Plan considering threescenarios of 3000, 3500 and 4000GL/y. These were chosen even though the rangecalculated to meet the minimum requirements was estimated at between 3000-7600GL/y. The reason no higher volumes were considered is said to be due to thepossible unmanageability of the social and economic impacts of any higher volume(Taylor 2010).The 4% interim threshold limit on the trade of water out of irrigation areas (Sched.3(4)(16)) can limit scope of water for environmental purchases by restricting thetransport of water across state borders to areas that desperately need it, such as theCoorong. It may even be possible to use the Ministerial Powers of s. 92 in regards towater charge rules to get around this cap.The 4% cap was reviewed in 2009 by the National Water Commission underparagraph 7(2)(h) of the National Water Commission Act 2004 and was of theopinion that that cap has, “impeded the use of buyback programs, unfairly andarbitrarily penalised willing sellers… distorted patterns of water trade… inhibitedstructural change and complicated interstate collaboration.” This cap is still inexistence though transition to free and open trade is supposed to be completed by2014 at the latest (Sched. 3 (4)(16)). Currently the MDBA have deferredimplementation of water reforms until 2019 (some other media report) instead of2012 as originally planned. This change came about after severe onslaught from
opposition to the Plan such as Tony Windsor MP, Independent Federal Member forNew England, a major irrigation region.So far only the Guide to the MDB Plan has been released which resulted in suchderision and vocal opposition that large-scale consultation is being conducted as wellas enquiries such as the Windsor Investigation. This investigation offeredrecommendations to the MDBA and the MDB Ministerial Council to cease thebuyback programs all together and provide more handouts to irrigators (Taylor 2010).Suggestions for the futureThe review made by the National Water Commission in 2009 discourages the use ofgrants and subsidies claiming instead that, “Until all government-imposed obstacles towater trading are removed, farmers and farming communities will not be able to seetheir future clearly or plan with confidence.” This, combined with National WaterInitiative principles, support the concept of actual-cost water pricing and builds theidea that the true value of water needs to be realised and accepted in all situations,from irrigation areas along the MDB to the communities and cities that draw waterfrom the river.The Greens Party has made statements supporting the implementation of the draftMDB Plan as well as the idea of federal support to help people do, ‘more with lesswater’ and allowing the MDBA to act as a fully independent authority with the powerto not have to compromise on the subject of water for the environment. Otherrecommendations made by Chris Daniels, a Professor of Urban Ecology, start withdisaggregation of water to separate the monopoly on water pipes from the competitive
supply and retail part. As with electricity, this would assist in encouraging innovationand competition, separate policy and regulation from ownership and supportefficiency through clear focus (Daniels 2010). Disaggregation of water is endorsed bythe 1992 World Rio Environment Summit and the 2003 Johannesburg World Summiton Sustainable Development (Daniels 2010).People, communities, farms and cities could also look seriously into alternative watersources e.g. stormwater harvesting and wastewater recycling to supplement thedemand. As irrigation is the main use of water from the MDB, where though somefarms have switched to drip irrigation, more than 90% have not and still usetechniques such as flooding or spraying which wastes 44% of the water just in gettingit to the roots (Government of South Australia). New technology such as precisionirrigation can save from 20-70% of water used and increase crop yield up to 50%,subsurface tape has even been developed and may see crops moved from heavier tolighter soils (Daniels 2010). As discussed by Joe Flynn and Peter Cullen, thisintroduces a choice of whether to refurbish old irrigation districts that may be toosmall with inappropriate irrigation layouts or shift to new areas using new technologyand the allow trade of water out of old areas and into these new districts.
ConclusionCommonwealth legislation does require environmental factors to be given moreweight than social and economic ones, as supported in the relevant sections of theWater Act 2007 and the Australian Constitution. The Guide to the Plan released bythe MDBA ensures the minimum requirement of water necessary to meet Australia’sobligations to relevant international agreements and provides to the social andeconomic considerations to the best of their knowledge.Delay in implementation and over-compromise of the stipulations of the Plan tolessen the impact on irrigators and river communities will restrict the potential for thePlan to provide enough water to restore and maintain the environmental assets of theMDB. Interim measures such as the 4% allowance cap on trade out of irrigation areasonly promotes unrealistic assumptions on the true value of fresh water. Seeing thePlan through to adoption by Parliament and beginning the transition to thissustainable management requires a strong stance on what the Plan is for and why it isnecessary to ensure the sustainability of the Murray-Darling Basin for generations tocome.
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