Bret Walker QC says floodplain harvesting “a legal activity”

NSW Greens, Labor and Shooters Party have been dealt a major blow in their bid to block licensing of floodplain harvesting.

Floodplain harvesting is “a legal activity”, says Sydney QC Bret Walker, in his advice to the NSW Upper House.

One of Australia’s top legal minds has told the NSW Upper House Select Committee on Floodplain Harvesting that the practice is legal, despite the claims of the Greens.

The advice of Sydney silk Bret Walker is a major blow to the unlikely alliance of Greens, Labor and Shooters, Fishers and Farmers Party MPs that dominate the committee and whose members have twice scuttled NSW Government bids to pass regulations through the Upper House that would license and measure floodplain harvesting.

Greens MP and chair of the committee Cate Faehrmann has previously told Parliament “floodplain harvesting is illegal”.

But in answering eight questions put together by Ms Faehrmann and her committee, Mr Walker found floodplain harvesting is legal.

“The circumstances that have obtained for generations are, it turns out, circumstances under which the take of water through floodplain harvesting should be considered (nor merely could be considered) a legal activity,” Mr Walker stated in his advice.

“That is, of course, not the same as suggesting that this is a desirable state of affairs – but that is a question of policy for legislators.”

The Select Committee’s questions and Mr Walker’s answers are as follows:

1. Following the disallowance of the Water Management (General) Amendment (Floodplain Harvesting) Regulation 2020 in September 2020, is it an offence under section 60A of the Water Management Act 2000 to carry out floodplain harvesting if a person does not have a water access licence?

“No offence against sec 60 WMA is committed by floodplain harvesting”

2. Was it an offence to carry out floodplain harvesting without a water access licence prior to the exemptions introduced by the Water Management (General) Amendment (Floodplain Harvesting) Regulation 2020?

“No. It was not an offence … to carry out floodplain harvesting without a water access licence, specifically a floodplain harvesting access licence.”

3. What effect does the rollout of NSW Government’s Floodplain Harvesting Policy have on the legality of floodplain harvesting in NSW?

“None at all. Unless and until a policy becomes law, it cannot, and therefore will not, have any effect on the legality of floodplain harvesting.”

4. Is the take of water through floodplain harvesting a legal activity under the Water Act 1912?

“Yes. It appears floodplain harvesting was a not unlawful (i.e. was a lawful) activity while the Water Act 1912 governed the position.

“It is no longer meaningful to regard the repealed Water Act 1912 as a source of law in relation to floodplain harvesting.

“Second, it could not be clearer that generations of government attitudes to floodplain harvesting, while the Water Act 1912 governed, were uniformly to the effect that it was not an unlawful activity.”

5. Are floodplain harvesting works constructed without approvals an offence under section 91B of the Water Management Act 2000?

“Construction of so-called floodplain harvesting works without approval is not an offence under sec 91B WMA.”

6. Is there any circumstance under which the take of water through floodplain harvesting could be considered a legal activity?

“The circumstances that have obtained for generations are, it turns out, circumstances under which the take of water through floodplain harvesting should be considered (nor merely could be considered) a legal activity”.

“That is, of course, not the same as suggesting that this is a desirable state of affairs – but that is a question of policy for legislators.”

7. Is paragraph 3 of the of the Harvestable Rights Order – Eastern and Central Division (HRO) published on pages 1628-30 of the Government Gazette No. 40 on 31 March 2006 to be read collectively or distributively?

a. Does the exemption for dams listed in Schedule 2 of the HRO only apply if the storage is located on minor streams?

“The provisions of para 6 of the HRO, that pick up Schedule 2, therefore exempt dams on minor streams only from the 10 per cent limit, depending on them falling within one or other of the cases specified in Schedule 2.”

b. Does Schedule 2 of the HRO allow for unrestricted take of rainfall runoff without the need for an access licence or water supply work approval for the purposes of meeting landholder obligations to prevent the contamination of a water source if the captured water is not mixed with water captured from other sources (such as water accessed and stored pursuant to a form of licensed entitlement)?

“In my opinion, the word ‘solely’ in item 3 of Schedule 2 limits the nature of water lawfully captured in such a dam to the character of ‘drainage and/or effluent’. Only if, and to that extent, rainfall run-off is properly so described (as I imagine in some circumstances it may well be) can it fall within the aspect of the exemption from para 3 of the HRO.”

c. Does Schedule 2 of the HRO allow for unrestricted take of rainfall runoff without the need for an access licence or water supply work approval for the purposes of meeting landholder obligations to prevent the contamination of a water source?

“No. There is nothing unrestricted about this position it relates ‘solely’ to ‘drainage and/or effluent.”

8. How best can the practice of Floodplain Harvesting be legislated?

“Policy, I hope, will never be the specialised preserve of lawyers. (However) my lawyers response to the large question – ‘How best can the practice of floodplain harvesting be legislated’ – is to advise clarity, justice and workability”.

The full copy of Mr Walker’s advice can be found here.