Basin plan legality questioned

By Alana Christensen

Doubt has been cast on the legality of the Murray-Darling Basin Plan, with a leading lawyer suggesting two amendments to the plan may be unlawful.

In an issues paper released last week, Bret Walker — who is currently overseeing a South Australian Royal Commission into the basin plan — raised concerns regarding the legality of the Sustainable Diversion Limit Adjustment Mechanism (SDLAM) which is set to go before parliament this week.

The SDLAM outlines 36 projects which, if delivered, would see 605Gl returned to the consumptive pool.

Mr Walker has called into question the decision by Murray-Darling Basin Authority (MDBA) to institute a ‘‘triple bottom line’’ — relating to balancing environmental, social and economic outcomes — to determine SDLs, contending this was not what the 2007 Water Act had intended.

He voiced concerns the triple bottom line meant the authority has ‘‘fallen into legal error’’ and questioned whether social and economic outcomes should be considered in determining the environmentally sustainable level of take.

Independent public policy think tank The Australia Institute echoed Mr Walker’s views in its paper Desperate Measures, labelling at least two of the proposed 36 SDLAM projects unlawful and calling for the SDL amendment to be disallowed by the Senate this week.

The paper points to two projects — the Menindee Lakes project in western NSW and the Enhanced Environmental Water Delivery project — which the institute argues do not align with the basin plan’s current legislation and regulatory requirements.

The two projects account for about 300Gl of the amendment’s 605Gl of water savings.

‘‘There are another 34 projects that are likely to have similar shortcomings, claiming to deliver water on paper, but unlikely to deliver anything in the real world,’’ the paper states.

MDBA chief executive Phillip Glyde has refuted the claims in the Australia Institute report, labelled them ill-informed and unsubstantiated.

‘‘Disallowance of the amendment will likely rupture intergovernmental support for the basin plan, and risk no further water being recovered for the environment,’’ he said.

‘‘In effect, progress would be stalled at just two-thirds of the way towards the plan’s environmental targets.’’

He said the environment would not be short-changed if projects failed to reach the expected benefits, stating a reconciliation process would be put in place in 2024 to make up any shortfall.

Federal Water Minister David Littleproud said he intended to ‘‘let lawyers be lawyers’’ and focus on delivering the Murray-Darling Basin Plan.