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Floodplain harvesting inquiry

27 September, 2021
Floodplain harvesting inquiry Image

The NSW Legislative Council inquiry into Floodplain Harvesting has a considerable way to go before it makes its findings. I do not seek to influence the work of the committee by making this statement rather place on the record my thoughts in light of the legal advice provided by Mr Bret Walker AO SC.

Mr Walker is a highly regarded figure in the Australia legal profession and has been appointed to several inquiries as a Commissioner, including the South Australian Murray-Darling Basin Royal Commission. In my opinion he should be considered an expert in the area of water law.

Mr Walker was engaged by the cross-party Legislative Council committee to provide legal advice on eight questions put to him centred on the legality of the practice of floodplain harvesting. Mr Walker’s legal advice has recently been published as part of the inquiry hearings. Much of the reporting around this has centred on Mr Walker’s opinion on the legality of floodplain harvesting.

Mr Walker’s legal advice is clear, the activity of floodplain harvesting was, and is, lawful under NSW law.

Narratives to the contrary have obstructed the path to properly regulating floodplain harvesting. It is through proper regulation that we will gain real time monitoring, enforceable limits, and information that allows for proper compliance.

It is important to note that the path to regulation has not been without other obstacles. The process has been a debacle, no one is covered in any glory, the arrogance of the government covering its mistakes, misinformation campaigns and the entitlement of many has led us to floodplain harvesting remaining outside of modern regulation.

The first floodplain harvesting regulation, was made in haste and I believe in error in February 2020, it was a disgrace and arguably negligent and was rightly disallowed.

The second floodplain harvesting regulation, May 2021, allowed for two activities to occur. In simple terms they allowed for the transfer of the 1912 Water Act rights to take floodplain water to the new Water Management Act 2000. Secondly the regulations provide advice about measuring and compliance models to be used in the making of Water Sharing Plans under the Water Management Act.

What does this all mean? The rights under the 1912 Water Act do not contain any volumetric restrictions, and they are not required to measure take. By transferring them to the Water Management Act they attract significant restrictions. By bringing these rights, which remain legal despite the age of the legislation, into modern law it means they must meet the standards of other water licencing practices namely agreed volumetric limits and enforceable compliance with those limits.

Without passing such a floodplain harvesting regulation we remain stuck with a practice that is lawful but outside modern law and therefore modern monitoring and compliance practices.

Poor policy work by this current NSW Government, their lack of transparency in the water portfolio decision-making has allowed for mistrust in the NSW Government’s ability to manage water to cement in. It is in this environment mistruths have been able to flourish.

Right now across the entire NSW Murray-Darling Basin both north and south there are illegal flood diversion banks and structures – the NSW Government has an ever growing list of where they are, and they’re sitting on it.

This is just one piece of information they should release (in a manner that protects the identities of the property owners) immediately if they want to improve their reputation. From the date of publication an 18 month deadline on their removal should start. The NSW Government should then provide regular, ongoing updates on the decommissioning of these structures to the public. This is just one thing the NSW Government and the Water Minister should be doing to improve the transparency around water management in this State.

Many will want a black and white answer from me on the following question, one I have been asked many times during this debate, one that fails in my opinion to capture the complexity of water management in NSW – Roy, do you or do you not support floodplain harvesting? My answer as I have always said is I support use of water off the floodplain, out of the river or ground within sustainable and legal limits. All forms of take need to be metered and in a Water Sharing Plan so that Available Water Determinations (AWD's) and current conditions can vary levels of take. There has been no change in the position I took to the election in 2019.

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