Chapter Five: Application of equitable utilization and minimisation principles at the federal level
5.6 New era of federal water management .1 The Water Act 2007 and adopting principles of IEL
5.6.3 The basin plan and implementation
The basin plan is the primary blueprint for water reallocation, returning water to the environment and reducing water for irrigation. The plan was prepared by the MDBA in 2012.701 It starts with acknowledging the rights, values and customs of Australian Indigenous people towards the water. It begins with Ngarrindjeri elder Tom Trevorrow's words: “our traditional management plan was don’t be greedy, don’t take any more than you need and respect everything around you. That’s the management plan—it’s such a simple management plan, but so hard for people to carry out.”702 This section and the following sections discuss how the decision-makers in the basin follow this simple management plan.
Preparing the basin plan was one of the aims of the Water Act 2007. This was emphasised in part 2 of the Act.703 According to the Water Act, the basin plan should implement IRBM to achieve the Act's objectives. The purpose of the plan is outlined in the Act as following:704
(a) giving effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources); and
(b) the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources (including by interception activities);
and
(c) Basin-wide environmental objectives for water-dependent ecosystems of the Murray-Darling Basin and water quality and salinity objectives; and (d) the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes; and
(e) water to reach its most productive use through the development of an
701 See Commonwealth of Australia Water Act 2007–Basin Plan 2012, Extract for the Federal Register of Legislative Instruments (as introroduced in 28 November 2012) (2012).
702 At Acknowledgement.
703 Water Act 2007 Act No. 137 of 2007 as amended at s 19.
704 Water Act 2007 s 20.
efficient water trading regime across the Murray-Darling Basin; and (f) requirements that a water resource plan for a water resource plan area must meet if it is to be accredited or adopted under Division 2; and (g) improved water security for all uses of Basin water resources.
The first and most interesting point among these purposes is to emphasise international conventions when designing or reforming the basin plan. This is a great step to put international principles such as equitable utilisation and minimisation of environmental harm into national or local legislation. These principles are also confirmed in point (b) of the purposes, by limiting the basin’s resources' utilisation and managing them in a sustainable method. Focusing on the basin's economic value is shown in point (d), because without sustainable and environmental management of the basin, the basin's optimal economic benefits will not be achieved.
To achieve the above objectives, the Act introduced the Sustainable Diversion Limit (SDL), illustrated in section 23, and the Environmentally Sustainable Level of Take (ESLT).705 The SDL yearly measures the amount of water extracted from both surface and groundwater to determine them at both catchment and basin areas.706 The ESLT is explained as “the level at which water can be taken from that water resource.”707 To meet the SDL, the MDBA has to recover 2,750 GL water from the basin. Thus, the government worked on two main issues to recover this amount of water and meet the SDL. Firstly, it has recovered water rights and purchased water from the irrigators and sellers, for which the government paid AU$2.5 billion out of the AU$3.1 billion budget.
Secondly, it invested a considerable amount of money in developing water infrastructure and enhancing water efficiency in the basin. For this purpose, the government has spent more than AU$4 billion out of AU$8 billion dollars, which is provided for this purpose.708
According to the Royal Commission Report in 2019, adopting the whole basin plan and
705 At s 23.
706 John Williams and R Quentin Grafton “Missing in action: possible effects of water recovery on stream and river flows in the Murray–Darling Basin, Australia” (2019) Australasian Journal of Water Resources at 553.
707 Water Act 2007 s 4.
708 QJ Wang, Glen Walker and Avril Horne “Potential impacts of groundwater sustainable diversion limits and irrigation efficiency projects on river flow volume under the Murray-Darling Basin Plan” (2018) Report written for the Murray-Darling Basin Authority at 1-3.
applying both SDL/ESLT is questionable and perhaps “unlawful.” 709 The Commissioner believes that achieving environmental, social and economic objectives in the basin is “incommensurate.” According to him, decision-makers do not have the foundations to meet the recovery target in the MDB. Thus, considering and balancing the three bottom-line objectives, which are environmental, social and economic without making trade-offs, is not logical.710 Despite the legal uncertainty of the basin plan, there is no long-term and intensive monitoring in the basin for achieving the targets.711 Enacting law and setting principles may not be effective without a strong implementation of the law and its underlying principles. For instance, the Murray–
Darling Basin Plan set significant principles for managing water in the basin in a sustainable manner. Equitable utilisation, minimisation of environmental harm and transparency are considered as the main principles for the basin plan. However, it is doubtful whether these principles are implemented effectively and if the basin Authority's is effective at implementing them with transparency. Water theft and illegal extraction are still major issues that the Authority cannot control. Recent allegations of water theft and illegal extraction of the Barwon-Darling River make the basin plan's effectiveness questionable. The river is one of the tributaries of the Murray River and reports have mentioned the theft of billions of litres of water in the river.712
In addition, a lack of transparency in implementing the plan is the primary concern for locals, small businesses and indigenous people in Australia. Many of them argue that they have not been consulted during the design and implementation of the basin plan.713 Despite this issue, there is an imbalance in providing funds to large corporations rather than small farmers and businesses, mainly in the lower part of the basin. According to the Australian Institute’s report in 2018, the basin's decision-maker provided a considerable amount of money for large corporations compared to a small amount for the locals. Webster Limited is one of the large companies that received AU$40 million, while all of the communities and small businesses were cumulatively granted AU$36
709 Bret Walker Murray–Darling Basin Royal Commission report (2019) at 25.
710 At 20-21.
711 Matthew J Colloff and Jamie Pittock “Why we disagree about the Murray–Darling Basin Plan: water reform, environmental knowledge and the science-policy decision context” (2019) 23(2) Australasian Journal of Water Resources at 91-92.
712 Thompson, above n 691.
713 Australia Institute Trickle Out Effect: Drying Up Money and Water in the Lower Darling (Canberra, 2018) at 4- 5.
million for water buy-backs in the MDB.714 All of these issues accrued while there was a robust institutional arrangement in the basin led by the MDBA. The next section addresses the role of the MDBA in the management of water resources in the basin.