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Water Bill falls short

Speeches in Parliament
Rachel Siewert 17 Aug 2007

The issue of the management of Australia's shared water resources is one of the utmost importance. This issue is made all the more fraught in the Murray-Darling Basin by the problems of the overallocation of the system, particularly during periods of wet years; the complex governance arrangements within the basin; the sheer number of players involved; significant differences in the complex and varied systems of water allocations and water rights across the different jurisdictions; and the prospect of significant reductions to available water and increasing uncertainty in the face of climate change. While there has been recognition of the problems facing the Murray-Darling system for decades, it is fair to say that governance arrangements in the basin have been characterised by inertia and a lowest common denominator approach to resolving conflict. Quite frankly, it has been a basket case.

The agreement on the National Water Initiative in 2004 was a major conceptual step. However, despite knowing how bad the problem was and what was needed to fix it, the necessary on-the-ground progress in reforming water management in the basin has not happened. The announcement of the National Plan for Water Security by the Prime Minister in January 2007 represented a recognition of the seriousness of the issue, with a commitment of $10 billion, but was another disappointing example of the continuing politicisation of the issue, coming as it did-without consultation and with significant strings attached in the lead-up to a federal election.

Given the crucial importance of these issues and the significant amount of public money that is now at stake, it is particularly disappointing that so little time has been afforded to proper consultation over these bills, particularly when they have changed so significantly over the last month or so and that the time given for the committee inquiry to review the legislation was so short. Also, as Senator Bartlett said, the inquiry was held on the same day as the Northern Territory emergency response bills inquiry, which meant that for those of us who are on both committees it was extremely difficult. As people can see from our minority report, we are also concerned that during the committee inquiry, although a number of very serious issues were addressed, we did not think that all of the significant issues were addressed.

We believe that there are significant amendments that need to be made to the Water Bill 2007. There are very positive aspects of this bill, including commitments to determine sustainable extraction levels, a shared planning framework and a whole-of-basin perspective, realising the promises of the NWI and creating greater water security for all stakeholders. There is an opportunity to overcome the inertia and infighting that has characterised basin governance, and a commitment to meeting international commitments by using our treaties power. However, as I have just said, the Greens believe that the bill in its current form has a number of what we believe are significant weaknesses. We believe that many of these weaknesses could be addressed through legislative amendment, and I welcome a brief opportunity to suggest some constructive improvements that members of the Senate may wish to consider.

To this end, the Greens will be putting forward a number of amendments, which I hope will give us the opportunity to further discuss some of the complexities of this bill. I hope that these amendments will be taken on board, because they address some of the issues that I am about to talk about. The problems that we see with the bill include the long lead time before the basin plan effectively comes into operation, which has been brought about by the recognition of existing plans for the lifetime of those plans. Most of them go to 2014 but some-in Victoria, for example-go to 2019. Other problems include the lack of clear environmental targets and timelines, the risk that the return of environmental flows could be too late to prevent irretrievable damage to some important ecosystems, the creation of yet another large bureaucracy within the basin and the complexity of having multiple agencies and institutions with overlapping jurisdictions, the lack of independence of the new Murray-Darling Basin Authority and the provisions that allow the minister to direct the MDBA in setting the sustainable diversion limit and in developing the environmental watering plan.

Other problems include the risk that institutional arrangements within the bills may effectively freeze reforms, possibly delaying them for many years; the extent to which many of the reforms are now dependent on the content of the intergovernmental agreement, the IGA; the possibility that the process of reaching agreement could drag out and even further delay on-the-ground outcomes; the lack of community consultation and engagement, in particular in the IGA but also in the legislative process; the lack of consultation with Indigenous stakeholders; the manner in which the debate has become politicised, with particular reference to compulsory acquisition, which I will come back to later; and, finally, the risk that investment decisions could be strongly influenced by political considerations.

This is a once-in-a-very-long-time opportunity. We believe that we need to take the time to get this particular piece of legislation right, because it has been a long time in coming. One of the biggest questions for us is: will the response be quick enough? The Australian Greens are particularly concerned by the time frame of the proposed interventions. On the one hand, the government is pressing the urgent nature of the issue and saying that this is the reason that the bills need to be pushed through the legislative process in a short space of time in this session. On the other hand, the decision to recognise and protect existing catchment plans effectively means that there will be little change in the basin until after 2014. For many of our threatened ecosystems and for our rural communities in which our farmers are struggling with uncertain seasonal water allocations, this delay could mean that action is too late to significantly help our farmers, to preserve our precious environmental assets and to protect irrigation industries.

In theory, the Prime Minister has already committed to spending $6 billion to improve irrigation infrastructure and $3 billion to address overallocation and buy back environmental water. However, much of this investment is now contingent on all the states signing up to the intergovernmental agreement. I am concerned that the need to negotiate this complex and fraught intergovernmental agreement could result in considerable delays in undertaking needed water reform and returning environmental flows. This is why the Australian Greens are calling on the government to immediately begin buying back water from willing sellers, which would increase both the amount of environmental water available and the certainty of existing water entitlements by reducing the extent of overallocation. The purchase and return of water to environmental flows needs to be addressed urgently as the combined impact of extended drought and overallocation is severely threatening the resilience of many of our iconic ecosystems.

There is a real risk that we may soon pass thresholds beyond which these systems cannot bounce back. The Greens are particularly concerned that there is nothing within the legislation which guarantees speedy action in implementing both the basin cap and the environmental watering plan. As the Wentworth Group of Concerned Scientists stated in their submission to the inquiry:

We are concerned that if existing plans are protected then little change will be seen within the Basin until after 2014, by which time many of the environmental assets and the rural wealth of irrigation could be destroyed. This task is urgent.

We note that the Victorian government indicated that its recently revised plans, which it expects the government to honour, will run through to 2019-that is, another 12 years. There is nothing within the bill to ensure that the first basin plan is completed within two years of the establishment of the Murray-Darling Basin Authority. I am aware that this was discussed in the committee, but the Greens very strongly recommend that the government addresses this issue during this discussion and that the minister gives an undertaking that he will direct the MDBA to finalise its first basin plan within two years of its establishment.

The Australian Greens are concerned about the lack of consultation and the lack of recognition of Indigenous rights and interests in the bill. We share Indigenous concerns that the Water Bill 2007 should include explicit recognition of traditional owners' inherent rights to land and water and provide a consistent approach for Indigenous participation in natural resource management. We also believe that the legislation should include provisions of water for cultural purposes.

To save the ecosystems of the Murray-Darling Basin, we need to set a robust and ecologically sustainable limit on diversions. That, quite clearly and simply, is the key task that confronts us in reforming water use within the basin. The bill does not guarantee any environmental outcomes. The Australian Greens are concerned by the lack of environmental goals and time lines within the bill and with its failure to require end-of-basin and end-of-valley targets. While it will be the job of the MDBA to put in place the specifics of these targets and plan how they will be achieved, we believe that the very failure to stipulate that there should be environmental targets and to indicate the principles upon which such targets and plans should be reached is a major shortcoming.
In setting the basin cap and determining a limit on diversions from the basin that is ecologically sustainable, it is essential that we have a good understanding, based on the best possible science, of both the hydrology of the system-that is, how much water is in the system-and of the ecological requirements for the health and resilience of the system-that is, how much needs to be set aside. This is a very important point. The Australian Greens are concerned that, as it stands, the CSIRO study into sustainable extraction limits is effectively focused primarily on hydrology, only providing half the data needed to set the cap. Determination of the level of sustainable extraction, the cap, must be based on both the knowledge of total available water and the science of what is required for ecosystem health.

We remain concerned that there seems to be an assumption that the cap will be a magic, fixed figure, whereas we believe it likely that the requirements of adaptive management to maintain and enhance resilience will mean that this figure is likely to vary. It is critical in setting the limit on diversions that we ensure that we are accounting for the needs of ecological communities in critically low- or medium-flow years and the need to protect and enhance the resilience of these systems after periods of extended drought, and that we are taking into account the impacts of climate change in both the reduction in the amount of water within the system and its increased variability, including more extreme weather events-that is, more droughts and flooding rains.

This is why the Australian Greens believe that the bill needs to directly address the need for a robust, ecologically sustainable diversion limit for the basin and outline robust criteria to guide the development of those limits. This is why we believe that it is important to use median figures which reflect the reality of flows in the system more effectively than long-term averages, particularly for the more variable, and often ephemeral, event driven systems of the northern basin. This is why we believe that it is critical that we set end-of-system and end-of-valley flow targets. Further, this is why we believe that the MDBA must be given direct responsibility for ensuring environmental outcomes and for systematically monitoring the health and resilience of the system and its dependent ecological communities. Professor Cullen, who gave evidence to the committee inquiry, said:

I fear that the inflows into the Murray-Darling have dropped by about 40 per cent over what has been the reasonably long-term average.

I believe we need to adjust to this water scarcity and learn to live without a number of wet years. It is probably more serious in that we have now run all the storages to empty and it is quite possible that some of those storages will not refill without a run of quite unusually wet years. They will not fill in average years. We are not dealing with a stable system. We are dealing with one that has quite a lot less water and which might be continuing to decline.
There is clearly a need for better science on ecosystem resilience and for more work on its adaptive management. Emerging knowledge on the resilience of our drought adapted ecosystems now makes it seem likely that after a big drought there may be an environmental requirement for a high-flow flushing event onto the floodplains and through the wetlands to ensure recovery and restore resilience. We believe that there are two critical issues that need to be considered: how we manage to protect and enhance the resilience of our riverine, floodplain, wetland and estuarine ecosystems; and whether the proposed governance systems and water-sharing arrangements are flexible enough to deal with the requirements for ecosystem survival in low-flow and critical-flow years in the face of climate change predictions. To this end, the Australian Greens recommend that the government commit to funding the best possible science into how to maintain and enhance the resilience of our river ecosystems and into how to deal with climate shift. We also recommend that water-sharing arrangements be reviewed to ensure that they are compatible with the requirements for managing resilience. The Australian Greens will be moving amendments to require information gathering on ecosystem health and resilience by the MDBA and to add consideration of these issues to the objects of the bills.

The Australian Greens support the contention of the Wentworth Group that the option of compulsory acquisition needs to be kept on the table as an option of last resort. We believe that we need a mechanism to allow acquisition of water on just terms, and that ruling out compulsory acquisition as an option of last resort may not be in farmers' best interests when they are faced with a need to relocate or restructure. Compulsory acquisition offers the possibility of compensation on just terms-in other words, more than market value-and exemption from capital gains tax. The Greens will be moving to strike out section 255 to enable compulsory acquisitions as an option of last resort.

We are also concerned about the independence of the Murray-Darling Basin Authority. The Australian Greens are particularly concerned by the issues relating to the independence of the MDBA and the proposed powers of ministerial oversight and direction. We are concerned that, as the bill stands, the minister can direct the authority in setting both (1) the sustainable extraction level and (2) the environmental water plan. We believe that the powers of the minister to intervene in the exercise of the authority's functions in the basin plan and to create exemptions to the basin plan by regulation compromise the MDBA's independence and authority. We therefore will be putting forward amendments to address these issues. The Greens also believe that a Commonwealth environmental water holder needs to be free from inappropriate limits.

We believe that the responsibilities of the authority also need to be looked at. We support the comments of the Wentworth Group on the need to ensure that the MDBA is explicitly given responsibility for meeting the environmental objectives laid out in the objects of the act. The Australian Greens will be seeking to amend the bill to ensure that the authority is given responsibility for meeting these objectives of the act. We believe that this makes sense and is the only reasonable option. We also note the suggestion by the Wentworth Group that part 5 of the bill should be amended to direct the authority to progressively establish a central, secure basin register of water entitlements, and we will be seeking to amend section 103 of the bill to that effect. The Wentworth Group said:

The commonwealth should build a top class water registry system for surface and groundwater systems, with appropriate guarantees. All commonwealth water should be on such a registry, and irrigators should have the opportunity to migrate to this registry if they wish to have greater certainty as to titles.
In the short time I have left, I would also like to address the issues around international commitments. The Greens welcome the recognition within the legislation of Australia's commitments to a number of international conventions, including the Ramsar Convention on Wetlands of International Importance, about which I have spoken in this place at length; the Convention on Biological Diversity; and the various migratory bird conventions. We are concerned, however, that the legislation should not merely be consistent with these international obligations but should be seeking to give effect to them. In seeking to use Australia's commitments to these international conventions as a way of invoking the Commonwealth's external affairs powers, the Commonwealth has an obligation to ensure that it is fully implementing its commitments under these conventions.

The Australian Greens believe that the basin plan and water resource plans needs not only to be consistent with and give effect to relevant international agreements but also to be consistent with and give effect to plans and strategies developed for implementing those commitments under the EPBC Act. We believe that water resource plans should be required to implement relevant Ramsar management, recovery or threat abatement plans. As you would expect, the Greens will be moving amendments to this end. We also believe that the legislation should specifically implement important and relevant elements of the climate change convention, and we will be moving amendments to put this into effect. This is particularly important given the impact that climate change will have-and we contend is already having-on the basin.

The Greens will also be moving amendments to deal with the issue of public-standing provisions. We believe that, to ensure that the authority and the minister can be held accountable in exercising their public interest functions under the legislation, the water legislation should be amended to provide for public-standing provisions equivalent to those in the Environment Protection and Biodiversity Conservation Act 1999. This will allow interested persons to be able to assist in the enforcement of the legislation by applying for injunctions if someone has engaged, is engaging or is proposing to engage in conduct that would constitute a contravention of the act. We believe that the amendments that we are proposing will significantly improve this legislation. I will be talking about the specific amendments in the Committee of the Whole.

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