Friday, March 29, 2024

Murky water stirred by politics

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The NSW Upper House inquiry into floodplain harvesting hadn’t even finished hearing evidence when a barrage of media releases came from the Victorian and NSW National Parties.

NSW Water Minister, Melinda Pavey’s press release stated: 

The NSW Upper House Select Committee on Floodplain Harvesting received expert legal advice that the practice of Floodplain Harvesting was never illegal, exposing claims made by a number of members of the Inquiry as misleading and inflammatory.

It was later followed up by Victorian Nationals, Steph Ryan, firing out against Member for Murray, Helen Dalton:

By scuttling the regulations, the Shooters and Fishers Party are complicit in allowing floodplain harvesting to continue in NSW, to the disadvantage of Victorian irrigators. Shooters and Fishers MP Helen Dalton’s claim that if she was elected, she’d ‘bring the water back’ has turned out to be nothing but hot air. It’s clear where the Shooters and Fishers Party stands. And it’s not with Victorian irrigators.

What caused this great flurry of excitement by the Nationals? It appears the excitement was generated by how floodplain harvesting sits as an offence under s60A of the Water Management Act. This does not mean floodplain harvesting is lawful, it just means that provision doesn’t catch it.  

Where floodplain harvesting comes unstuck is the legal level of take by NSW is limited to the 1994 cap and the regulatory framework of the Water Act 1912. Floodplain harvesting works have been granted approval under Part 8 of the Act. However, Section 21B(1)(a) of the Water Act 1912 makes it an offence to use a work to take water for irrigation unless done in accordance with a licence. No licenses have ever existed, and it appears that these landholders assumed the works approval alone gave them the right to take as much water as they like.

Walker SC said the practice of floodplain harvesting had at best ‘dubious legality’ and the argument to defend it would rest upon ‘social justice’.  

Walker SC also said current thinking that this floodplain harvesting water was freely available to everyone as if it were ‘the commons’ goes against every Water Act since Federation.  He says this understanding that water in NSW ‘is the commons is absurd and totally at odds with the intergovernmental agreements that culminate in the Basin Plan’.

The legal limits for the volume of permissible water take in NSW is still governed by the 1994 cap on water extraction, and the current behaviour by NSW Government could trigger ‘take over’ powers by the Murray-Darling Basin Authority!

Any take beyond the cap is contrary to the Federal Water Act and Basin Plan. Walker SC stated that if NSW allow this to occur it will, “be unlawful and remove from the State its control over matters within the State.”

I can agree with the Nationals on one thing, floodplain harvesting does need to be licenced and metered, it just needs to be done in a way that adheres to the ‘94 cap and reflect the true volumes set out under the cap; volumes which are starkly different to what is currently being pushed by NSW.

Congratulations, Minister Pavey, not only have you sat idle while our family farmers have been decimated and the mighty Murray hydraulically land cleared, you may have just opened the door for more MDBA intervention – a terrifying thought.

The Koondrook and Barham Bridge Newspaper 30 September 2021

This article appeared in The Koondrook and Barham Bridge Newspaper, 30 September 2021.

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