Updated 2.20 PM
The South Australian Royal Commission into the Murray Darling Basin Plan created a stir this week, releasing an issues paper arguing environmental concerns overrule social and economic considerations in determining the water volume available to irrigation.
Irrigators have challenged the interpretation and criticised the timing of the release, which comes days before a crucial Senate vote to determine how much more water will be recovered from irrigation entitlements in the Southern Basin.
The Commissioner Bret Walker’s Issues Paper 2 said that the Basin Plan’s governing legislation in the Water Act “requires environmental considerations to be paramount, and that economic and social outcomes are irrelevant to the determination of (the environmentally sustainable level of take)”.
Mr Walker’s interpretation calls into question the sustainable diversion limits offset mechanism, which the Murray Darling Basin Authority determined could reduce water recovery by 605 gigaltires.
The Basin Plan was set in place to reduce an over-allocated river system and set a limit of 10,873GL, known as the sustainable diversion limit. The overall recovery target to hit that volume is 2750GL.
Within the recovery target, the MDBA has approved 37 project proposals from the states which are designed to use environmental water more efficiently, creating savings found to be equivalent to 605GL worth of buybacks.
The offset projects, which have been subject to persistent criticisms, are designed to reduce water recovery to balance environmental needs with the goals of limiting the community impact from water cutbacks.
The Senate is set to consider the Greens’ motion to disallow the approval which has been granted to the project on May 8.
The option to implement the offsets was written into the Basin Plan by the Labor government in 2012. It was designed to balance the triple bottom line - that is factors of environmental, social and economic consideration.
Mr Walkers is a Senior Counsel who has conducted a number of commission’s of inquiry, and was the Commonwealth's inaugural Independent National Security Legislation Monitor.
He is arguing the Water Act requires an environmentally sustainable level of take that maximises the benefits to the environment and the Basin Plan undermines that objective with the offset projects it has built into the sustainable diversion limit.
“It is mandatory for the Basin Plan to at all times reflect an environmentally sustainable level of take,” Mr Walker said in the paper, going on to note he is considering whether the MDBA “has fallen into legal error” by approving the offset projects.
If Mr Walker’s interpretation is implemented, the projects would be scrapped and 605GL of voluntary Southern Basin buybacks could be back on the table.
The left wing think tank the Australia Institute has suggested legal challenges could be lodged if the Senate approves the offset projects.
National Irrigators Chief executive Steve Whan, a former Rural Affairs Minister in the NSW Labor government, downplayed the significance of Mr Walker’s argument.
“I’m not a lawyer, but I read a lot of legislation in my years in politics and I don’t agree with his interpretation,” Mr Whan said.
“Mr Walker has a lot of legal knowledge, but it’s just an opinion.
“Only a court can decide if the Plan is valid or not.
“You’d have to launch a challenge in the High Court and if you’re successful, and that’s a big if, the government could come back and amend the Act. That’s the most likely outcome.
“The Basin Plan took a long time to negotiate and I don’t think most Australians would think its in the national interest to have it thrown out on a legal technicality.”
Southern Riverina Irrigators chairwoman Gabrielle Coupland said the issues paper “clearly an attempt to influence senators”.
She said the offset project clauses had been written into Basin Plan under the scrutiny of Commonwealth advice.
“Before finalising the Basin Plan, then Minister Tony Burke released advice from the Australian Government Solicitor that he said confirms social and economic aspects can be given consideration.
“Then again in 2014 the independent panel charged with reviewing the Water Act found that the Act’s aim is to promote the use and management of the Basin to optimise social, economic and environmental outcomes while giving effect to international agreements.
“They also found that ‘international agreements themselves recognise the importance of economic factors. Do these people really think that Tony Burke would have drafted and written a Plan that included clauses that would make it non-compliant with it’s ruling Act?”
MDBA said the Basin Plan in its current form complies with the legislation.
“The MDBA considers that the Basin Plan 2012 was developed consistent with the requirements of the Water Act,” MDBA chief executive Phillip Glyde said.
A successful disallowance vote could yet scuttle support for the Basin Plan from NSW and Victoria, who argue the disruption it would cause communities is untenable.
The Commission said in response to feedback on its position paper that it has invited public submissions which are due by June 1.
“The issues paper reflects the commissioner’s current views.
“If any person or organisation has a contrary view, the commission would welcome the opportunity to consider any legal advice they have received on these issues, and to consider such views at hearings that will be conducted on these issues.
“The views expressed in the issues paper are not new, and are similar to views expressed by eminent lawyers and legal scholars. As mentioned, the Commissioner will hold hearings on these issues, and will then likely publish an interim report.
The Commission said Mr Walker considered it appropriate to look at issues of legality and lawfulness first.
“He considers it inappropriate for the commission to delay examination of or public discussion of those views for any reason,” the Commission said.