Kellehers is frequently asked to advise in matters related to water. Planning controls apply watercourse setbacks, flood overlays, dams and requirements for wetlands and water-dependent ecosystems and subdivision drainage. We litigate for recovery of losses due to water and flood damage to buildings and land. Our groundwater checklist is a valuable resource. We created the Operational Manual for Local Government special rate and changes schemes, including drainage and road construction schemes. There are Crown land impacts, including those arising from changes to watercourses. We advise as to water contamination, both surface and groundwater and disposal of waste to water, including ‘take and use’ licences. Our clients are often deeply frustrated by complex bureaucracies. One farming family, with last year’s floods about to inundate their farm, required examination of 40 relevant policies, along with additional related plans and guidelines – literally, thousands of pages.
This NewsFlash considers a recent Bill introduced to Federal Parliament by the Federal Minister for Environment and Water, Tanya Pliberseck. The Bill is called the Water Act (Restoring our Rivers) Bill 2023 (Cth), Claimed to be an initiative to overcome a decade of neglect, it amends the key Murray-Darling Basin (MDB) legislation, which is the Water Act 2007 (Cth) (Water Act). Victoria immediately opposed the Bill.
The MDB includes six of Australia’s seven longest rivers, including the Murray (Australia’s longest river) and the Darling (Australia’s third longest river) and its tributaries. In Victoria, these tributaries are extensive. The MDB supports one of Australia’s and Victoria’s most significant agricultural areas, with strong irrigation sectors supporting associated established commercial and residential towns and cities. The MDB and the Basin area hold deep Indigenous cultural heritage and spiritual significance, not only to the Peoples of the rivers and tributaries but to a far wider group of Indigenous Peoples whose cultural heritage links with those rivers. The MDB crosses State boundaries and its southern bank forms a large part of Victoria’s northern boundary[1] and, since the 1840s, many different surveying methods have been used to re-establish the State borders[2]. This creates additional layers of complexity and, consequently, has a complex water management, social and environmental history.
The Bill responds to national and international concern at dramatic fish kills and barren dry stretches of riverbed along the Darling River – and publicity as to apparent corrupt licence purchases and transfers. Areas across south-east Australia that were ravaged by last year’s devastating floods remain disrupted, with communities still tackling insurance, rebuilding and reconstruction.
The Bill fits within the objects of the Water Act that include protecting the MDB’s ecological values and ecosystem services, returning to environmentally sustainable water extraction levels and, subject to these two objects, maximising net economic returns. Rebalancing environmental water with ‘consumptive’ water usage is a core objective.
Since the Water Act commenced, market and corporate law, climate change and environmental law have changed significantly. Increasingly market solutions are used to achieve environmental outcomes e.g. nature and biodiversity repair markets, carbon markets, water markets. Increased duties are placed on company directors in regard to environmental and climate change strategies. Corporate financial reporting will, from next year, require routine reports related to climate change risks, including progress toward greenhouse gas targets. Insurers are increasingly refusing cover in high-risk areas and imposing high premiums with significant exclusions. Advisory professions, including accountants, lawyers and business consultants, must inform themselves of the rapid legal changes in order to provide climate-conscious advice.
At the same time, this Bill sits within a complex set of existing future time deadlines, including a set of ‘focal themes’ for the MDB Plan and Productivity Commission plans for a renewed National Water Initiative. It also comes alongside anticipated changes to Australia’s key environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Key features of the Bill
Key funding and commercial elements of the Bill include:
- It encourages greater use of funds available from the Water for the Environment Special Account (WESA) to address detrimental social or economic impacts on a MDB community(s) arising from a water efficiency project or water access rights purchase. WESA can also be used for water purchases or efficiency programs themselves. The Bill does not address a scenario where there is no willing access rights seller. No compulsory acquisitions are intended.
- It introduces a Water Markets Intermediaries Code, with a statutory trust accounting framework and civil penalties. The ACCC is given powers to monitor water prices and investigate misconduct. Additional provisions address water market decisions, insider trading and market manipulation. They apply to any tradeable water right – at pre-trade, trade and transfer points.
- Bureau of Meteorology (BOM) links with water market decisions and data. Water market decisions are to be recorded and publicly available.
- The Basin Plan must contain an Action Plan.
- The date for delivering the Sustainable Diversion Limit Adjustment Mechanism (SDLAM) projects is extended to 31 December 2026.
Whilst time extensions seem inevitable, the Bill ‘kicks the can down the road’ for delivery of the 450GL of environmental water. The Greens, Adam Brandt, moved an amendment requiring a guarantee of the 450GL environment delivery.
The Bill omits a strategy for approaches to take account of climate change. Kellehers asks why the Bill does not introduce a general environmental duty to prioritise the health of the MDB. The general environmental duty is a powerful tool within Victoria’s Environment Protection Act 2017 (Vic)[3]. Enforcement mechanisms and a priority on enforcement action require strong attention. There are ‘non-negotiables’ that must now apply to future water management negotiations[4].
Dr Leonie Kelleher OAM
KELLEHERS AUSTRALIA PTY LTD
Copyright © Kellehers Australia 2023.
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This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[1] Ward v The Queen (1980) 54 AWR 274-283; see Department of Natural Resources and Environment, Guidelines for the Determination of the State Border Between New South Wales and Victoria Along the Murray River (NSW Government, 2nd ed., 1993).
[2] Blaby, Bradley, ‘Re-Establishment of the State Border between New South Wales and Victoria,’ (BSS Thesis, 2009), 11.
[3] Environment Protection Act 2017 (Vic), s 25. A similar duty exists in Queensland under the Environment Protection Act 1994 (Qld) s 319.
[4] In these comments, we acknowledge research by Dr Rebecca Nelson (formerly of KA), Professor Barry Hart and Rod Marsh, Editorial, Review of the Murray-Darling Basin Pl.an: An opportunity for renewal, forthcoming Special Issue of the Australian Journal of Water Resources, ‘in press’.