Law research paper

Law Assignment 3: Research Paper georgia pollard

1100017956

Topic 4: Consider the draft Murray-Darling Basin Plan released October 2010 and

discuss whether Commonwealth legislation requires environmental factors to be

given more weight than social and economic factors in the draft Plan.

Introduction

The Murray-Darling Basin Plan drafted by the Murray-Darling Basin Authority

(MDBA) is a mandate of Commonwealth legislation, the Water Act 2007. Underlying

and specific sections of the Act require the Plan to give greater weight to

environmental factors and consider the social and economic factors only to the extent

of not restricting upon the environmental ones. Excessive consultation and over

acceptance of negotiation and compromise by the MDBA may result in the Plan over

considering the social and economic factors or having implementation of the Plan

staggered back until it has little effect on the issue now. As recognised by the

National Water Commission, various environmental experts and the Greens Party, the

MDB currently has too little water left in it under the disjointed management and

needs a strong environmentally based Plan to be implemented now and not be held

back by vetos, investigations, scare campaigns or interim measures.

Some background on the Murray-Darling Basin situation

Water has always been an issue in the mostly semi-arid Australia. Even before

federation, disagreement over water usage by the states with access to the Murray

River, New South Wales, Victoria and South Australia has been fierce. The only

section in the Constitution (s.100) referring to conservation and irrigation in regards

to water was written as a judgement of, ‘reasonable use’. This ambiguous statement

perfectly defines the level of decisiveness common on the issue of water usage and

agreements for years onwards.

Various attempts at agreements, commissions and strategies such as the Murray

Waters Agreement of 1914 and the Salinity and Drainage Strategy of 1989 were

made, but precise knowledge of the amount of water available during the river’s

natural wet and dry periods combined with rates of usage along the whole system was

little understood until 2005 when the Murray-Darling Basin Commission introduced a

cap on the volume of water allowed to be taken from the River for consumptive uses

though it was not enough to create a sustainable standard (MDB Ministerial Council

2000).

Transferral of certain powers from the basin states to the Australian Government

resulted in the Water Act of 2007 creating the first independent agency to manage the

combined water resources of the MDB. The Murray-Darling Basin Authority is first

and foremost an environmental agency set up to create a Murray-Darling Basin Plan

that combines hydrological and ecological data to readdress environmental water

issues (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 for

comment. It will finally be passed on to the Minister for Sustainability, Environment,

Water, Population and Community for adoption and tabling in Parliament (MBDA

2008).

The supporting legislation

The Water Act 2007 is the main legislation behind the MDBA and stipulates exactly

what is required in the MDB Plan. As stated by Michael Taylor at the release of the

Guide to the MDB draft Plan the Act requires the MDBA to identify key ecosystems

and environmental assets and determine how much water is necessary to both

maintain and restore them to meet Australia’s international agreements. He went on to

say that by identifying how much water needs to be allocated to the environment this

will 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 after

years of over-allocation of water resources. It is estimated that 80% of the water in the

MBD is diverted for consumption, 90% of which is used for irrigation (Brandon

2010). As irrigation is the largest user of water from the Murray, it is logical to expect

the extra water necessary to maintain the environmental assets of the MDB to be

subtracted from irrigation allowances.

The specific sections of the Water Act pertaining to whether or not it requires the

environment 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 and

Williams consultation submission. Section 21 of the Act is put forward as the main

objective of the plan: to give effect to international agreements such as RAMSAR and

the 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 to

subsections (1), (2) and (3). Even the issue of providing for ‘critical human water

needs’ is covered in the Amendment of s. 86A which states that regard will only be

given “without limiting section 21”.

The Water Act reflects the federal Parliaments’ power in section 51(xxix) of the

Constitution, to enact laws with respect to ‘external affairs’ as well as being able to

pass laws to implement obligations made in international treaties (See Commonwealth

v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1.). The submission goes further

into what giving effect to international treaties actually means, and reveals that the

main obligations of both RAMSAR and the Convention of Biological Diversity are

written to permit consideration to social and economical matters but not the point that

would restrict implementation of such environmental obligations (Convention on

Biological Diversity, Article 2).

The relevant International Agreements

The Convention on Wetlands of International Importance, known as the Ramsar

Convention works for the conservation and wise use of wetlands and their resources

around the world. Australia became a Contracting Party in 1974 and has 64 verified

Ramsar 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 to

ensure their health.

‘Sustainable use’ has been defined by the Convention on Biological Diversity as, “the

use of components of biological diversity, thereby maintaining its potential to meet

the needs and aspirations of present and future generations.” (article 2). This

definition supports the underlying idea that to meet the needs of current and future

generations we need to maintain the biological systems that sustain us.

The Japanese Australia Migratory Bird Agreement (JAMBA) and the Chinese

Australia Migratory Bird Agreement (CAMBA) are International Agreements that has

Australia committed to, to protect the environment particular migratory bird species

depend 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 Water

Act 2007

Calculations and modelling of the impacts of various volumes of water recovered for

environmental flows resulted in the Guide to the draft MDB Plan considering three

scenarios of 3000, 3500 and 4000GL/y. These were chosen even though the range

calculated 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 the

possible 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 the

transport of water across state borders to areas that desperately need it, such as the

Coorong. It may even be possible to use the Ministerial Powers of s. 92 in regards to

water charge rules to get around this cap.

The 4% cap was reviewed in 2009 by the National Water Commission under

paragraph 7(2)(h) of the National Water Commission Act 2004 and was of the

opinion that that cap has, “impeded the use of buyback programs, unfairly and

arbitrarily penalised willing sellers… distorted patterns of water trade… inhibited

structural change and complicated interstate collaboration.” This cap is still in

existence though transition to free and open trade is supposed to be completed by

2014 at the latest (Sched. 3 (4)(16)). Currently the MDBA have deferred

implementation of water reforms until 2019 (some other media report) instead of

2012 as originally planned. This change came about after severe onslaught from

opposition to the Plan such as Tony Windsor MP, Independent Federal Member for

New England, a major irrigation region.

So far only the Guide to the MDB Plan has been released which resulted in such

derision and vocal opposition that large-scale consultation is being conducted as well

as enquiries such as the Windsor Investigation. This investigation offered

recommendations to the MDBA and the MDB Ministerial Council to cease the

buyback programs all together and provide more handouts to irrigators (Taylor 2010).

Suggestions for the future

The review made by the National Water Commission in 2009 discourages the use of

grants and subsidies claiming instead that, “Until all government-imposed obstacles to

water trading are removed, farmers and farming communities will not be able to see

their future clearly or plan with confidence.” This, combined with National Water

Initiative principles, support the concept of actual-cost water pricing and builds the

idea 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 water

from the river.

The Greens Party has made statements supporting the implementation of the draft

MDB Plan as well as the idea of federal support to help people do, ‘more with less

water’ and allowing the MDBA to act as a fully independent authority with the power

to not have to compromise on the subject of water for the environment. Other

recommendations made by Chris Daniels, a Professor of Urban Ecology, start with

disaggregation of water to separate the monopoly on water pipes from the competitive

supply and retail part. As with electricity, this would assist in encouraging innovation

and competition, separate policy and regulation from ownership and support

efficiency through clear focus (Daniels 2010). Disaggregation of water is endorsed by

the 1992 World Rio Environment Summit and the 2003 Johannesburg World Summit

on Sustainable Development (Daniels 2010).

People, communities, farms and cities could also look seriously into alternative water

sources e.g. stormwater harvesting and wastewater recycling to supplement the

demand. As irrigation is the main use of water from the MDB, where though some

farms have switched to drip irrigation, more than 90% have not and still use

techniques such as flooding or spraying which wastes 44% of the water just in getting

it to the roots (Government of South Australia). New technology such as precision

irrigation 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 to

lighter soils (Daniels 2010). As discussed by Joe Flynn and Peter Cullen, this

introduces a choice of whether to refurbish old irrigation districts that may be too

small with inappropriate irrigation layouts or shift to new areas using new technology

and the allow trade of water out of old areas and into these new districts.

Conclusion

Commonwealth legislation does require environmental factors to be given more

weight than social and economic ones, as supported in the relevant sections of the

Water Act 2007 and the Australian Constitution. The Guide to the Plan released by

the MDBA ensures the minimum requirement of water necessary to meet Australia’s

obligations to relevant international agreements and provides to the social and

economic considerations to the best of their knowledge.

Delay in implementation and over-compromise of the stipulations of the Plan to

lessen the impact on irrigators and river communities will restrict the potential for the

Plan to provide enough water to restore and maintain the environmental assets of the

MDB. Interim measures such as the 4% allowance cap on trade out of irrigation areas

only promotes unrealistic assumptions on the true value of fresh water. Seeing the

Plan through to adoption by Parliament and beginning the transition to this

sustainable management requires a strong stance on what the Plan is for and why it is

necessary to ensure the sustainability of the Murray-Darling Basin for generations to

come.

Bibliography

Australian Federal Government 2007, Water Act, viewed 12 June 2011,

http://www.comlaw.gov.au/Details/C2011C00160/Html/Text#_Toc28926128

9

Brandon, E 2011, Topic 6 slideshow, Environmental Law, University of South

Australia, Mawson Lakes

Commonwealth of Australia 1983, Commonwealth v Tasmania (Tasmanian Dam

Case), 158 CLR 1

Commonwealth of Australian 1995, Agreement between the Government of Australia

and the Government of the People's Republic of China for the Protection of

Migratory Birds and their Environment, viewed 13 June 2011,

http://www.austlii.edu.au/au/other/dfat/treaties/1988/22.html

Commonwealth of Australian 1995, Agreement between the Government of Australia

and the Government of Japan for the Protection of Migratory Birds in Danger

of Extinction and their Environment, viewed 13 June 2011,

http://www.austlii.edu.au/au/other/dfat/treaties/1981/6.html

Commonwealth of Australia, The Australian Constitution

Daniels, C 2010, Adelaide water of a city, Wakefield Press, Kent Town.

Government of South Australia 2005, Water proofing Adelaide: a thirst for change

2005-2025, viewed 14 June 2011, http://www.sapo.org.au/pub/pub3041.html

Kildea, P and Williams, G 2011, The Water Act and the Murray- Darling Basin Plan,

Public Law Review, 22 9-14

Murray-Darling Basin Authority 2008, The Basin Plan, viewed 13 June 2011,

http://www.mdba.gov.au/basin_plan

Murray-Darling Basin Authority 2008, Guide to the Murray-Darling Basin Plan,

viewed 10 June 2010, http://thebasinplan.mdba.gov.au/guide/

Murray-Darling Basin Ministerial Council 2000, Review of the operation of the Cap,

viewed 12 June 2011,

http://www2.mdbc.gov.au/nrm/the_cap/review_of_cap_operations.html

The Ramsar Convention on Wetlands 2010, The Ramsar homepage website, viewed

10 June 2011, http://www.ramsar.org/cda/en/ramsar-

home/main/ramsar/1_4000_0__

Spokesperson Sarah Hanson Young 2011, Greens question Windsor’s Murray-

Darling Basin committee report, media release, viewed 12 June 2011,

http://greensmps.org.au/content/media-release/greens-welcome-windsor’s-

murray-darling-basin-committee-report

Taylor, M 2010, ‘Questions regarding the Murray-Darling Basin Plan’, Media

Monitors press conference transcript, viewed 14 June 2011,

United Nations 1992, Convention on Biological Diversity, viewed 13 June 2011,

http://treaties.un.org/doc/Treaties/1992/06/19920605%2008-

44%20PM/Ch_XXVII_08p.pdf

Vivasa 2010, Coorong and Lower lakes and Murray Mouth, viewed 13 June 2011,

http://stm.esc.net.au/facts_coorong_lower_lakes_and_murray_mouth.php

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