Murray-Darling Basin Royal Commission Report

South Australian report also finds negligence and unlawful actions in drawing up multibillion-dollar deal to save river system

Let’s go through the responsible ministers’ responses, one by one.

Environment Minister Melissa Price has not been spotted anywhere near the vicinity of the crime scene or fronted the media for comment.

Minister for Agriculture and Water Resources, and Minister Assisting the Prime Minister for Drought Preparation and Response David Littleproud? See “Price” above, though he did call for yet another inquiry, despite his Government having paid no attention to the last one.

NSW Premier Gladys Berejiklian has thus far deftly avoided the stench of fish and rivers in general. She did, however, manage a quick stocktake on the number of voters in Menindee. Fish don’t vote, after all — especially dead ones.

Appearing before the media in Wentworth (lots of voters, not many fish and the scene of the last Coalition electoral annihilation), Berejiklian told reporters:

“I’ve been in close proximity to Menindee… To be honest, my job as Premier is to visit communities on the ground that are most concerned about their water security… In comparison Menindee has a population of around 300…”

Former Deputy Prime Minister Barnaby Joyce, the person who signed off on huge water “use” – also referred to as “theft” in some quarters – by gargantuan cotton irrigators, has likewise avoided the media and, of course, the stinky fish remains of his handiwork. Said handiwork also included dubious water purchases favouring wealthy irrigators, as previously reported by IA in 2017.

Prime Minister Morrison, demonstrating that a “fish rots from the head down”, didn’t bother to visit the site, either, spending his time on elaborate Captain Cook commemorations and sporting events instead. He also tried to argue that despite the “devasting ecological event”, the Government had been “operating in accordance with scientific evidence” provided back in 2012 — except as IA has already pointed out, it has not.

Instead, as a leaked 2012 memo from Fisheries NSW indicated:

‘There appears to have been no consideration of any scientific information on the impact of extraction or changes to the environment that have been detailed in the last decade.’

And last but not least, this clueless response from Barnaby’s underwhelming replacement, Deputy PM Michael McCormack:

“The fact is, we are experiencing incredibly prolonged dry period [sic] and when it doesn’t rain in the catchment, the water doesn’t flow down the Darling. Unfortunately, these things happen.”

Of course, as pointed out by experts, these things never happen in normal drought conditions, evinced by the fact that some of these fish had survived for 100 years, until now.

The head of the royal commission into the Murray-Darling basin plan has recommended a complete overhaul of the scheme, including reallocating more water from irrigation to the environment.
Releasing its report on Thursday, the South Australian Murray-Darling basin royal commission found the original plan ignored potentially “catastrophic” risks of climate change.
Bret Walker SC’s report also found commonwealth officials had committed gross maladministration, negligence and unlawful actions in drawing up the multibillion-dollar deal to save Australia’s largest river system.
The investigation into the plan, prompted by allegations of water theft by New South Wales cotton farmers which first aired on the ABC in 2017, recommended major reform, including resetting water-saving limits, repealing the outcome of the northern basin review, dumping major projects, like the Menindee Lakes project, proposed by NSW, and new measurements for water on floodplains.
The report comes as drought grips the Murray-Darling basin. Rivers have stopped flowing in north-west NSW, leaving some towns on severe water restrictions.
Several major fish kills in NSW, including two of unprecedented scale at Menindee on the lower Darling, have resulted in hundreds of thousands of fish dying, leading to renewed questions about management of the river system by authorities. The lakes were drained twice in 2016 and 2017 as the drought hit.

Find the 746-page report containing 111 findings and 44 recommendations below this article.

Walker was particularly critical of the plan’s lack of consideration of climate change and has called for it to be central to a rewrite of the plan.
Instead he found that the government had adopted what it calls a “triple bottom line” approach, where it considered economic and social factors to reduce the recovery target for the environment.
He warned that the plan was vulnerable to being declared invalid, though he rejected allegations that the commission was somehow encouraging this path.
He also called for a fresh review of the northern basin, which had been subject to “gross maladministration by the MDBA”.
“It is an example of how the current management of the MDBA has shown itself unwilling and incapable of fulfilling its statutory functions and obligations,” he said.
The decision to cut the amount of water recovered for the environment in the Northern Basin by 70 gigalitres was “unlawful” and should be dumped. He said unchallenged evidence from the Wentworth Group of scientists and others was that the Macquarie marshes and the Narran lakes were already degraded.
He called for more water to be recovered from the environment and said that if the best available science was adopted, as the act required, there would need to be more buybacks from farmers in the northern basin.
As for the southern basin, where the government is planning to achieve 605GL of water savings, the commissioner was equally critical. He said the program was “beyond the power” of the MDBA and could cause “serious adverse ecological impacts”.
He was particularly critical of the Menindee lakes project – NSW’s main water saving project. It involves shrinking the lakes and emptying them more often to save water from evaporation.
Locals and scientists have warned it will lead to an even greater ecological catastrophe than the fish kills in the adjacent river.
Walker said it was “problematical” that the project could meet the requirement that it produce “equivalent environmental outcomes” given its important role as a source of flows for the imperilled lower Darling and as a fish nursery.
The insistence of NSW water minister, Niall Blair, that the project must proceed in the aftermath of the fish kills was “grossly irresponsible” and his threat that blocking the project would blow up the basin plan itself was “designed to menace”.
Walker also criticised the slow progress on developing water sharing plans – the nuts-and-bolts rules that underpin water sharing – saying NSW and Victoria had shown a lack of commitment.
He also called for the states to review their water resource plans to expressly recognise and authorise the taking and use of water by Indigenous people in exercise of native title rights.
The premier of South Australia, Steven Marshall, said his government, which is at the end of the river, would carefully consider all of the recommendations and would not make a rushed response.
But as the state at the end of the river system, it has a greater stake in ensuring the plan works. Marshall asked the prime minister to call an urgent meeting of states and territories to discuss the way forward.
Blair and the NSW deputy Premier, John Barilaro, who was in Menindee to inspect the site of the fish kills on Thursday, made it clear they would resist further cuts to the water entitlements of farmers, as recommended by the report.
“We will fight tooth and nail for our rural and regional communities,” the Nationals politicians said. “They need certainty. They need to know they have a future in the towns they love, communities they work in and the places they raise their families.
“The gloves are off when it comes to fighting for our water rights.”
The MDBA said it was “confident the plan has been made lawfully and is based on best available science”. It rejected “any assertion that it has acted improperly or unlawfully in any way”.
“Despite the denials of some politicians, industry figures and regulators, the royal commission has detailed significant failures by those charged with restoring our most important river system,” said the ACF director, Dr Paul Sinclair.
“The findings of the royal commission fit a consistent pattern of behaviour from Australian governments that has resulted in environmental disaster and the catastrophic loss of wildlife.”
The independent NSW MP Jeremy Buckingham said the Darling/Barka River was on the “very brink of no return”, which showed that hard decisions needed to be taken.
The royal commission was hampered by a decision by the federal government to block its bureaucrats from giving evidence. But most of Australia’s scientists with expertise in the Murray-Darling basin, climate change and river environments testified.
He pointed to the 2008 CSIRO study which said the the southern basin would get warmer and drier, likely resulting in “significantly less run-off into the river systems in the 21st century”.
“Based on the evidence of climate change experts, these projections are conservative – it is possible the reduction in run-off could be catastrophic ,” he warned.
He has also said the factors considered when the governments set the “environmentally sustainable level of take”potentially render the plan invalid. “The Water Act requires environmental priorities to be given primacy when determining an ESTL,” Walker said.

Billions of litres were being diverted for irrigation, in breach of the Murray-Darling Plan

The royal commission is one of several inquiries into the integrity of governance in the Murray-Darling triggered by ABC’s Four Corners report, Pumped: Who is benefitting from the billions spent on the Murray-Darling?

Since then a cascade of scandals has eroded public confidence and governments have been losing the trust, authority and legitimacy needed to govern the Basin.

These inquiries document numerous failings of governance.

However, the SA royal commission report provides the most comprehensive documentation on what underlies the deep crisis of legitimacy.

Drawing on countless testimonies, it focuses in exquisite detail on the intricate legalities of the Basin Plan, raising substantive policy, legal and scientific concerns.

Legality, science and politics

The royal commission report details complex interactions between law, science and public policy processes, revealing much about how history and power frame contemporary water and climate politics.

The Water Act (2007) marked a significant increase in the use of Commonwealth power over the Murray-Darling Basin. Its source of power over state law is based on the Constitution’s external affairs powers that derive from international treaties, like the Ramsar Treaty on conservation of wetlands.

As a result it clearly prioritises the environment and objectives of restoring riverine ecosystems.

MDBA staff blocked from inquiry

A cascade of scandals

Among the more sensational findings of the Murray-Darling Basin Royal Commission was that the authority responsible for administering the plan acted unlawfully and failed to use the best available science, including climate science.

The inquiry’s report, handed down this week, marked an extraordinary chapter in the Murray-Darling Basin’s controversial and contested reforms, and revealed much about the messy way in which water and climate law, science and politics interact.

Restoring public trust in the governance of the basin is increasingly urgent.

The inquiry’s finding that the Water Act’s worthy ambitions were unlawfully compromised by the negligence and maladministration of the Murray-Darling Basin Authority (MDBA) — documented in over 700 pages of forensic legal detail — deserve to be treated seriously.

Commissioner Bret Walker (and his team) has delivered an intensely detailed yet readable study that provides rare clarity on the intricacies of Murray-Darling water policy.

It should be widely read by those interested in the basin, in Australian history and the evolving nature of our Federation

Legality, science and politics

The royal commission report details complex interactions between law, science and public policy processes, revealing much about how history and power frame contemporary water and climate politics.

The Water Act (2007) marked a significant increase in the use of Commonwealth power over the Murray-Darling Basin. Its source of power over state law is based on the Constitution’s external affairs powers that derive from international treaties, like the Ramsar Treaty on conservation of wetlands.

As a result it clearly prioritises the environment and objectives of restoring riverine ecosystems.

The Water Act required that the MDBA draft a Basin Plan that ensured Australia met its environmental obligations, including by setting a Basin-wide sustainable diversion limit (SDL) that restored the environment. Disturbingly, the inquiry found that the MDBA ignored this requirement, instead adopting a “triple bottom line” policy concept (slogans) giving undue weight to economic and social outcomes.

It found that contrary to legal requirements, “the MDBA failed to act on the best available scientific knowledge”, and that “politics rather than science ultimately drove the setting of the Basin-wide SDL and the recovery figure of 2,750 gigalitres.”

The commission also found the MDBA’s failure to incorporate climate science was “negligent”, “indefensible” and “unlawful” ignoring the best available scientific knowledge arising from CSIRO’s Sustainable Yields Project, and the South Eastern Australian Climate Initiative.

These predicted the Southern Basin “will get warmer, and drier, likely resulting in significantly less run-off … significant warming in the Southern Basin … and a significant if not catastrophic reduction in run-off.”

Ignoring this and relying instead on “historical climate data from 1895–2009 was not only unlawful and against the advice of the CSIRO in 2009, it was and remains an indefensible decision from a policy perspective.”

Dereliction of duties

In no uncertain terms, the commission states that the failure to incorporate climate change projections into the SDL “demonstrates ongoing negligence by the MDBA”.

“It is a dereliction of its duties. It is not just indefensible, but incomprehensible. It is in breach of the MDBA’s obligation to perform its functions.”

The commission identified Australia’s deeper policy malaise of diminishing funding for climate research by the Commonwealth, arguing this is significantly detrimental to the Basin Plan.

To overcome this, the commission recommends that the Commonwealth urgently establish an independent Climate Change Research and Adaptation Authority, which will be appropriately funded to conduct research and formulate guidance on adapting to climate change.

Importantly, it calls for a “review of climate change risks to the whole of the basin, based on the best available scientific knowledge” and a comprehensive basin-wide environmental monitoring program, based on the Sustainable Rivers Audit.

Nothing to be gained from secrecy

Government obfuscation and “secrecy” has been a recurring theme of the MDB controversy. Reforms to restore trust need to be based on ending secrecy and adopting fully transparent approaches.

The commission is strident in its advocacy for full disclosure, arguing that this matter is of such public and scientific interest that full disclosure is desirable, necessary and a legal requirement of the Water Act.

Full disclosure is required because nothing proper is “to be gained from secrecy concerning the preparation or implementation of the Basin Plan”.

Use of the best available scientific knowledge “requires knowledge available to all, not kept secret by the MDBA” yet “the modelling that informed the Basin Plan” has not even been made available to the basin states.

The commission argues that the MDBA’s non-disclosure is indefensible. The “MDBA’s aversion to proper disclosure, and its reluctance to foster scientific scrutiny, is one reason why the objects and purposes of the Water Act and Basin Plan are unlikely to be achieved. It is unacceptable for a publicly funded, science-based authority with the functions of the MDBA to shield itself from external scientific scrutiny”.

Restoring confidence — where to next?

Restoring trust requires institutional reforms including more openly sharing information — with the public, with stakeholders and with partner governments.

Governments need to commit to radical transparency, actively engage communities, research and educational institutions in oversight, and harness citizens’ surveillance to prevent any abuse of power.

This requires social organisation that uses the media and our democratic checks and balances for determining, discovering and verifying the truth.

The SA royal commission should be celebrated as one disciplined and public way of attempting to do this.

Australia’s system of representative and responsible government requires full disclosure from all water agencies because the “Basin Plan involves huge expenditure of public funds … implemented by the servants of the public. Their work should be available for scrutiny by the public, including the scientific community, who are then able to critique such work, assist in checking it for both scientific validity and lawfulness”.

Where will this detailed report about the legalities in using science to inform water policy take us?

Probably to more inquiries — there is already talk of a Commonwealth royal commission. But such suggestions locate blame and do not necessarily result in needed reforms.

Rectification of the problems identified by the SA inquiry requires either amendments to the Plan, or to the Water Act, or both.

A core question is, do our political parties have the appetite to re-prosecute debates about the basin reforms?

Legal challenge unlikely

The commission rightly identifies that a legal and/or constitutional challenge is most unlikely given that water law in “Australia has largely avoided the litigious bitterness and economic strife … of the United States of America.”

We need to rectify the problems that are legal, environmental and part of our federation. We need to pragmatically make Australia’s co-operative federalism work rather than perpetuate blame games and the short-term rivalry and self-interests of the states.

South Australia’s legitimate interest needs to be recognised, because it would be naive “not to acknowledge the continuing upstream-downstream tensions affecting … future stewardship of the Basin’s water resources”.

The way we resolve the issues raised by the royal commission go to the heart of the way we live in this continent. They also demand that we confront the challenges of the climate change future.

These involve critical choices for our federated system of government and our modern discursive democracy.

For the sake of our rivers and for future generations, I hope we have the courage to face these challenges in ways that draw together leadership and the best policy and science-based options.

Natural resource consultant Jason Alexandra was an executive at the MDBA during the development of the Basin Plan, with responsibilities for climate and ecosystem science.

Article originally published by ABC News 2 Feb 2019

 

South Australia's Royal Commission into the Murray-Darling

The Full Report - Read it and weep

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