Pearls and Irritations

The headline findings of the Royal Commission into the Murray Darling Basin – unlawfulness, incompetence, regulatory capture – are spectacular. Despite its strong scientific base, the Murray-Darling Basin Plan has been undermined by the power of vested interests and a general ambivalence toward rivers. But responses to the Commissioner’s report by governments, opposition parties, the Murray-Darling Basin Authority, private sector organisations and even members of the community have been critical and/or dismissive. There is still time to save the river but the political system may be too broken to fix it.

It was the tale of two Royal Commissions. On the afternoon of 4 February the final report of the Banking Royal Commission was released. The conduct of the banks and industry regulators was slammed. Within a day the bankers had welcomed the recommendations. The Government stated it would ‘take action’ on the recommendations. The Opposition said it would implement the recommendations in full. Consumer advocates were cautious but positive. There is something approximating a group hug right there.

Five days earlier the report of South Australia’s Royal Commission into the Murray Darling Basin was published, in which the Commissioner, a leading public lawyer, found the principal statutory instrument regulating the Basin (the Basin Plan) unlawful, the key public agency (the Murray-Darling Basin Authority, MDBA) guilty of maladministration and ‘gross negligence’, and the legislated program for restoring Basin health through preparation of regional water plans will not be met. The report coincided with ecological collapse in the Lower Darling River, which is the ‘chronicle of a death foretold’.

The response to the MDB Royal Commission from Basin States, the Commonwealth, and the MDBA was, in essence, ‘nothing to see here.’ As Laura Tingle expressed it: ‘The clear fury behind the recommendations was met with a sedating blanket of nothingness.’ NSW saw nothing new and was, in any case, busy aerating the Lower Darling. Victoria said a dozen towns would close if we upset the apple cart. The PM and Opposition federally engaged in hand-wringing but insisted it was all too difficult and complex to change. The irrigator lobby went on the attack and more recently took on, perhaps ill-advisedly, the wit of Senior Counsel Assisting.

In short, we are seeing the perpetuation of gross negligence.

The headline findings of the Murray Darling Commissioner’s report – unlawfulness, incompetence, regulatory capture – are spectacular. Criticism that the inquiry was one-sided are ridiculous in light of the extraordinary volume and detail of evidence on science, administration, policy-making and law, the forensic interrogation by the Commission, and the gratuitously foregone opportunities of Commonwealth and State actors to participate and contend with anything they disagreed with. There are thousands of pages of submissions and evidence in addition to the report itself.

In light of the Commission’s sweeping indictment, and rather than reprise the headlines, here are some incidental comments in reflection on the Commission’s report.

The consensus of ‘nothingness’ does owe much to the political consensus in the making of the Basin Plan and complicity in its gradual winding back, such as through the prohibition on buy-backs and through Sustainable Diversion Limit (SDL) adjustments. But more than that there is a wider tale to tell of the (Australian) settler state and society’s ideological approach to land and water. It might be termed ambivalence, in our appreciation for the rivers and exploitation of them regardless. More fundamentally, our water ideology is deeply embedded in norms of water as an exploitable ‘resource’, essentially usufructuary, a factor of production. Underlying this paradigm is control and indifference to landscapes beyond their scope to generate profits. It’s not so surprising that politics triumphed over the Basin Plan, rather than the legislatively mandated science, because water management is a species of political economy, transacted between classes of ‘users’ including the environment. It just so happened that consumptive users, notably agribusiness irrigators, are the most powerful political-economic forces.

Many of the key features of the Commonwealth Water Act (2007) are sound nevertheless. These include the nature of the Act as principally an environmental statute, its intention to ameliorate over-extraction and restore aquatic ecosystems, establishment of science as the legal standard of decision-making, and construction of a system of ‘nested governance’ by which it is intended, as the Commissioner put it, that a regional water resource plan ‘is the local manifestation of the Basin Plan in operation.’ The achievement of environmental restoration outcomes is further enabled by legal and institutional mechanisms specifically intended to deliver that work, such as environmental watering plans and the Commonwealth Environmental Water-Holder. All of this is binding on the States. It is intended to unfold in an orderly manner and produce an ecologically sustainable equilibrium. These arrangements might be said to be a model for environmental and natural resources laws more generally.

The travesty has been in lawful and competent implementation, in the making of the ‘stepping stones’ toward outcomes. That sentiment is compounded by more recent findings from the Wentworth Group of Concerned Scientists of failure to achieve any observed increases in water at key ecological sites studied (2012-2018), despite billions (of dollars) spent and billions (of litres of water) purportedly recovered for the environment. Yet we are told to take it on trust that somehow it will all work out okay over the next five years or so.

Scientifically-informed, the elemental feature of the Water Act regime is the setting of limits. These are required to reflect environmental factors. In short, a key ecological paradigm is intended to operate here: human interference is subject to constraints, or as it has been expressed elsewhere, ‘boundaries’ and these are essential to ‘safe operating spaces’. The innovative quality of the Water Act is it sets up a type of safe hydro-ecological operating space, at least in principle – which the Basin Plan is supposed to deliver.

One of the clear failures of the Basin Plan’s roll out has been governance. Interestingly, both Royal Commissions point to the problem of conflicted, ambivalent public authorities. For the MDB the problem was exacerbated by dismantling accountability mechanisms such as the National Water Commission. One thing that has become more obvious over time is the critical role in practice of civil society in good governance. NGOs, First Nations, scientists, and investigative media have represented the public interest. The Commissioner recommended certain governance reforms, such as an authority to deal with climate change, splitting the MDBA, re-asserting scientific authority through revisiting SDLs and establishing independent environmental monitoring, and giving a stronger voice and ‘legal platform’ to First Nations.

The last point is telling. A real shift will have occurred when First Nations’ cultural authority effectively translates to legal, institutional and political-economic authority. To paraphrase the Commissioner, restoration of the Basin requires a more powerful role for First Nations.

Given findings of illegality, one wonders what role in the end there is for the courts, as the final arbiter of law, in ensuring proper governance and accountability. Public interest water litigation is rare in Australia but occurs. Water management has played fast and loose with the rule of law historically. Maybe times are changing.

There is still time to turn things around. Probably only just. The Commissioner referred to the need to re-determine SDLs ‘promptly’. We are half way through this reform program. Most Water Resource Plans have not been assessed or accredited. Many are in preparation. But is the political system too broken to fix the situation?

Dr Bruce Lindsay is a lawyer with Environmental Justice Australia.

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