Together with other members of the Coalition, the irrigator and farming lobby and others, Barnaby believes that the Water Act needs to be changed.
In 2007 Barnaby – along with all other members bar one on both sides of the Parliament – supported the Act. This year, he wants it investigated – ostensibly to insulate it from potential High Court challenge.
He says he wants an investigation into whether the Act provides an equal balance between economic, social and environmental factors.
The problem is that ‘equal balance’ is prone to differing interpretations. How can one ‘balance’ all the benefits, risks and interests in the Basin? Your answer will be dependent on where your risks, benefits and interests lie.
Depending on your values, equal balance could mean business-as-usual and environmental trade-offs. Or perhaps it might mean propping up agriculture on marginal land for overseas profit. Or perhaps it might mean providing rivers with a fair share of their own water.
Should a Commonwealth Act of Parliament – set up to rescue a dying river system with high levels of bi-partisan support – be changed?
To suggest that the Act needs amending is reckless. The Act is sound. It’s inevitable that different stakeholders will view the Act’s implementation through the Plan with different values and objectives in mind. That’s why we have an Act in the first place, to provide a basis for working these issues out.
The Act has a job to do, and that is to require the Murray-Darling Basin Authority to write a Plan for the Basin that includes returning water to over-allocated or overused rivers, so that levels of extraction are environmentally sustainable. The Act does describe how social, economic and environmental outcomes can be optimised (and impacts minimised) as the level of water-take is reduced in an effort to restore the health of the Basin’s rivers.
Because only a river with water in it can sustain fish and bird populations, irrigated agriculture, a vibrant tourism industry and demand for drinking water.
So giving the rivers in the Basin a fair share of total available water is the first and best thing to meet consumptive demands, economic activities, social opportunities and ecosystem functions.
Yet the disconnect between healthy rivers, healthy people and healthy economy remains rampant, as evidenced by Bob Katter’s comment upon the announcement of the Inquiry: “[t]ime for ponying up and finding out whether they’re fair dinkum or not, or whether they’re just going to take into account the environment and smash people”.
As it stands, the Commonwealth Water Act provides direction on how economic, social and environmental objectives can and should be achieved, while setting out a path to return extraction from rivers in the Murray‐Darling Basin to sustainable levels.
There are a range of legal viewpoints about interpretation of the Water Act.
In their submission, the Environment Defender’s Office caution against oversimplification and misinterpretation of the Act and point out that although the concept of ‘balance’ might have superficial appeal, in practice it is problematic.1
A series of eminent law professionals point out in their submission to the Inquiry: the Act “is not concerned solely with environmental values, but is consistent with the recognition that long term human use of water depends on maintaining environmental values.”2
Expert constitutional lawyer, George Williams has said that if the Basin plan does not properly look after the environment, then the Commonwealth Government can be taken to court for being in breach of the international conventions.
And international conventions are the item upon which one international legal opinion has found fault with our Water Act, saying that it is an environmental Act because that’s all it could be.
Well, if it’s an environmental Act, that’s because it needs to be. Without important national water reform, the Murray-Darling Basin faces a very uncertain future – environmentally, socially and economically.
As I write, the Senate Inquiry is hearing evidence from a range of legal experts about the Act, what it provides for, whether it needs changing, and how the Act might be ‘constrained’ for giving equal weighting to economic, social and environmental factors.
If only an equal weighting was what rivers health was given all the time.
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1 Submission 16, available at http://www.aph.gov.au/Senate/committee/legcon_ctte/provisionswateract2007/submissions.htm
2 Submission 75, available at http://www.aph.gov.au/Senate/committee/legcon_ctte/provisionswateract2007/submissions.htm