SA Commissioner blasts river management
Friday, 1st February, 2019
By Craig Brealey
The Menindee Lakes Project should not proceed and the “unlawful” and “indefensible” actions of the Murray-Darling Basin Authority raised serious doubts about whether it could fulfill its duty to save the river system.
These were among the many findings of the South Australian Royal Commission which presented its report to the public yesterday.
Commissioner Bret Walker SC also condemned the NSW Regional Water Minister Niall Blair for his “grossly irresponsible” statement that the Menindee Water Saving Project “must” go ahead despite the deaths of millions of fish in the Darling River this month.
This project, proposed by NSW as part of the Murray-Darling Basin Plan, would reduce the lakes’ capacity by 80 per cent, replace the Lower Darling with a pipeline and force station owners and orchardists to relinquish their water licenses.
Mr Walker found that the project was unlawful because it was not, according to legal requirements of the Basin Plan, environmentally sustainable.
“To put it mildly, the evidence before this Commission concerning it makes it very problematical whether that particular project, even viewed as part of a package of projects, could possibly meet this requirement,” he said in his report.
“As a source of sustained low-flows for the imperilled Lower Darling and as a vital fish nursery, to mention the most pressing aspects of the problem, the Menindee Lakes appear most unlikely candidates for a lawful supply measure project.
“Supposedly, these matters required by law to be assessed on the basis of the best available science and to be regulated under environmental State laws governing development, will all be taken into account as and when the NSW administrators decide whether to approve the Menindee Lakes Project.”
Mr Walker said Mr Blair’s insistence that project proceed smacked of a political stitch-up.
“The shocking fish kill that occurred in the second week of January 2019 had, as at the date of writing, yet to be examined as to causes, results, implications and preventability,” he said.
“Charitably, one may not take as a fixed view whatever politicians say, or bluster, in its immediate aftermath.
“But the statements attributed in news reporting to NSW Minister Blair... would, if they are not fake news, display an attitude at the very pinnacle of official responsibility that is in fact grossly irresponsible.
“They, if they were actually expressed by or on behalf of the Minister, should be rebutted and retracted.”
The published accounts attributed to Mr Blair contained two “egregious propositions”, said Mr Walker.
“First, he is said to have insisted that the Menindee Lakes Project ‘must’ proceed.
“How that could be properly asserted before all the various statutory steps and safeguards have been taken and observed beggars the imagination.
“It threatens a travesty of lawful administrative decision-making, along the lines of ‘the fix is in’.
“Second, Minister Blair is also said to have warned that not proceeding with the Menindee Lakes Project will ‘blow up’ the Basin Plan itself.
“The implied position of the NSW Government revealed by this crude language is presumably meant to menace the continued co-operative national endeavour to save the Basin from irreparable degradation.
“It amounts to saying that NSW will do what it can to destroy the Plan if this particular highly problematic project is not guaranteed, in advance, to contribute to a reduction in environmental flows and a commensurate increase in irrigation take.
“This is antithetical to everything the Act and Plan are intended to achieve. That is, a scientifically assessed limit on such take so as not to compromise the Basin environmental values.
“It may be that the Minister has been cruelly misreported, in which case an explanation of the true position of his government can then be evaluated on its real merits.
“But politicians do politics through news reporting, and are fairly open to be judged on reports they leave uncorrected.
“It may be that, had time permitted, this Commission could have sought explanation from Minister Blair.
“It is admittedly difficult to conceive of any satisfactory explanation that did not include complete retraction of the plain meaning of the news reporting.
“And it must be noted that his government has not exactly been forthcoming on the many previous occasions it has had the opportunity to explain itself to this Commission.”
NSW notoriously declined an invitation from the Royal Commission to give evidence by replying that everything it wanted to know could be found on the government’s websites.
Mr Walker found that the Basin Plan was unlawful because “key aspects” had been enacted in breach of the Water Act.
The process for determining the Basin-wide Environmentally Sustainable Level of Take from the rivers (ESLT) has been “undermined by an incorrect construction” of the Act, he said.
The MDBA had “impermissibly” adopted a so-called “triple bottom” line approach which was in clear breach of its charter, Mr Walker said.
The Basin Plan was meant to save the river system from the over-extraction of water but the MDBA had perverted the plan by putting the needs of irrigators and economic considerations before those of the environment.
The MDBA had also failed to act on the best available scientific knowledge in a several respects, contrary to the Water Act, said Mr Walker.
“The MDBA has failed to disclose key matters, such as its modelling.
“The MDBA completely ignored climate change projections for the determination of the ESLT and the setting of a Basin-wide Sustainable Diversion Limits. That is unlawful.
“It ignores the best available scientific knowledge. As an administrative decision it is indefensible.
“Politics rather than science ultimately drove the setting of the Basin-wide SDL and the recovery figure of 2750 gigalitres.”
The CSIRO told the MDBA in 2011 that between 4000 and 6000 gigalitres were needed to restore the rivers to health.
The MDBA then ordered the CSIRO to cut that figure back to about 2000GL or it would not pay the CSIRO for its work.
“The recovery amount had to start with a ‘2’,” Mr Walker said.
The MDBA then set the volume to be recovered for the environment at 2750 GL.
“This was not a scientific determination, but one made by senior management and the Board of the MDBA,” Mr Walker said.
“It is an unlawful approach. It is maladministration.”
Mr Walker was the MDBA’s approach had “cast doubt on the validity of parts or all of the Basin Plan.
“This can be remedied if the MDBA is prepared to act lawfully and in accordance with the Water Act.
“Regrettably...the MDBA has shown itself to be unwilling or incapable of acting lawfully.
“That state of affairs exists today, and is the principal reason why there are serious doubts whether the current senior management, and Board, of the MDBA are capable of fulfilling their statutory obligations and functions.”