The Basin Plan relegated climate science to the status of ‘hoax’ | Richard Beasley SC

We should stop talking about the Southern Murray being deprived only of 450GL per year. It is being defrauded of more than that, writes Richard Beasley.

During the last federal election campaign, the now Albanese Government made a commitment to “deliver” an extra “450GL of water for the environment” that has been overdue under the Murray Darling Basin Plan for more than a decade. It was a welcome pledge to steer the Plan away from years of neglect and unlawfulness.

At the request of the Federal Water Minister, the Murray Darling Basin Authority has now told us that the Basin Plan “cannot be delivered on time”.

That was obvious to Bret Walker SC over four years ago as he explained in his Royal Commission Report, and has been obvious ever since.

The Federal Water Minister is now seeking to extend the “delivery” of the Plan out to 2027. The Basin’s water ministers may meet in August to try to reach a deal on this, if one is not made before then. Recent history tells us that some states will demonstrate an ongoing contempt for the environment. But for the federal government, now is its last chance to honour the promise made in May 2022.

A claim that our most critical federal environmental law is unlawful requires explaining. Let me begin this way.

Farmer Wayne Smith watches his sheep move across the barren grazing land of his property near Pooncarie on the Darling River in 2019. Picture: Dean Lewins

In January 2019, the Darling (Baaka) River looked like a site of an Old Testament plague. A million dead fish. A series of pools, full of toxic algae. Four years later, and the Baaka was in flood. Once more, there were a million dead fish. Soon enough, the river will be in drought again.

A land of (frequent) droughts and (sometimes) flooding rains must manage water carefully. Instead, our politicians have conducted water policy in the Murray Darling like a long-running scam. On the First Nations owners and on taxpayers in our capital cities.

The Basin contains 60 per cent of our farms. It is home to 16 wetlands over which Australia has treaty obligations. It is of economic significance. In 2006, large parts of it were near environmental collapse, caused by a changing climate, and decades of overallocation of water by state governments.

Federal parliament’s response was the Water Act 2007 and a legislated measure to stop ongoing environmental harm – the Basin Plan.

The Basin Plan was not designed to end irrigated agriculture. We still grow crops. The idea though is that we don’t use so much water that we wreck the joint. It’s amazing how much hostility this idea provokes, especially in Victoria and NSW. No one should be embarrassed if they “prefer people to fish”, but most Australians have a preference that we don’t endanger our wetlands and wildlife. Tourists, that generate enormous revenue by visiting the Basin, tend not to go to see dead fish, or to swim in algal blooms.

Richard Beasley SC

How much more water the environment to stop its decline is a matter for scientists. But with the Basin Plan, unlawfulness became more convenient than legality.

Throughout 2018, Bret Walker AO SC considered decades of peer-reviewed science, and heard from dozens of expert witnesses about water management in the Basin, and about the Plan itself. In his Royal Commission Report he made findings of “negligence” and “maladministration” about every critical aspect of the drafting of the Basin Plan. His findings are irrefutable – but the government ignored them.

It’s rude to reduce a 764-page report into “takeaways”, but I’ll have to.

Walker found the Basin Plan wasn’t based on the “best available scientific knowledge”, as the law says it must. Its water recovery target was determined by politicians after a pep talk from lobbyists. Walker found this “unlawful”. It risks the constitutional validity of the core of the Plan.

He also noted that the recovery target was determined without the use of climate change projections, something the CSIRO advised was not scientifically “defensible”, and risked “irreversible environmental degradation”.

Walker called it “gross negligence”, likely to lead to “decades of inertia” (we are at 11 years of inertia now). The Basin Plan relegated climate science to the status of “hoax”. To those that support this approach, I argue that our taxes should be spent on the assumption that the laws of physics exist.

Finally, Walker said that the extra 450GL of water, the subject of the ALP’s election promise last year, should be recovered immediately by the voluntary purchase of water entitlements in the Southern Basin. This is water legislated for the Southern Murray, including our greatest wetland, the Coorong.

Barely 4GL of the 450GL has been recovered in more than 10 years. And this non-recovery of the 450GL is in the face of also not recovering 605GL of water per year for the environment based on what are called “supply measures” – largely infrastructure projects that by means closer to magic than science are said to be the environmental equivalent of more water each year than is in Sydney Harbour. Walker SC referred to these projects as akin to “pseudoscience” in his report. We should stop talking about the environment, and particularly the Southern Murray, of being deprived only of 450GL per year. It is being defrauded of more than 1050GL per year.

Federal Environment Minister Tanya Plibersek Picture: Nikki Davis-Jones

Fast forward now to 2023 and Tanya Plibersek should not wait until August for another meeting of water ministers. Based on the past decade, with the exception of SA (and hopefully now the feds), nothing but nonsense or insults will be said about the Plan anyway. She does not need to further justify the promise Anthony Albanese made in Adelaide in May 2022. Plenty of entitlement holders want to sell their water. Ms Plibersek should tell her colleagues that’s what the government is going to do right now, and drop the mic.

Of course, should the government purchase the water, opponents of the Basin Plan will loudly accuse it of destroying the economy of rural Australia. Such claims will not be supported by defensible economic reports, but will be made even if, as Walker found, they could be “debunked by an economics undergraduate”.

Leaving that aside, those that oppose the voluntary sale of water entitlements are effectively saying this: Australians should not be able to sell their water to their government to help the environment. The ethical justification for this position is yet to be made clear.

Richard Beasley SC is Commissioner for Murray River SA and author of Dead in the Water.