Exclusive: Documents show Katrina Hodgkinson changed plan to allow irrigators to extract up to 32% more after lobbying

This article is more than 2 years old

This article is more than 2 years old

This article is more than 2 years old

A water-sharing plan for the Barwon-Darling was altered by the former New South Wales minister for primary industries, Katrina Hodgkinson, even though public consultations on the draft plan had ended and her bureaucrats had already submitted a draft for her to sign.



The changes made it more favourable to irrigators and delivered valuable additional water during low flows. According to some modelling it may have increased legal extractions by irrigators by 32%.

Documents obtained by the Guardian, including ministerial briefing notes and minutes, show that NSW bureaucrats and an independent panel charged with assessing the public submissions thought they had come up with a balanced plan, which they put to the minister for signature in about June 2012.



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But even though the public process had closed, an irrigator lobbyist, Ian Cole, who was chair of the body representing large irrigators, Barwon-Darling Water, ramped up his representations directly to the minister.

The documents show he presented to the panel and wrote to the minister on at least two occasions during 2012, after the public consultation process had closed, lobbying for further changes.

By October, when the plan was signed off by the minister, a number of his suggested changes had been accepted.

The Barwon-Darling water-sharing plan had been contentious from the day it was introduced and had divided farmers up and down the river.

Justin McClure, a farmer from Tilpa, said he had withdrawn from the Mungindi-Menindee Advisory Council (MMAC) because he thought the organisation was too Bourke-centric and was putting the interests of farmers at Bourke first.

“In hindsight we were naive and negligent in that we took our eye off the ball,” he says of the water-sharing plan.

Terry Korn, president of the Australian Floodplain Association, whose members include farmers downriver from Bourke said the watersharing plan disadvantaged people down the river.

The formulation of the plan is now a major element of an investigation by the Independent Commission against Corruption, which is also looking into the NSW government’s handling of allegations of water theft and meter tampering in the region.



In hindsight we were naive and negligent in that we took our eye off the ball Tilpa farmer Justin McClure

The inquiry is likely to examine the actions of two former NSW National party ministers: Hodgkinson, who retired from parliament in September last year, and Kevin Humphries who was dropped as junior water minister in 2015 but who remains the local member for the state seat of Barwon.

The new questions over the Barwon-Darling water-sharing plan come as the Senate is set to vote on plans to reduce the water savings targets for the Northern Basin of the Murray Darling by 70 GL or 18%.



The reduction, recommended by the Murray Darling Basin Authority, is now likely to fail in the Senate with the Greens and Labor opposed to the changes.

An Australia Institute analysis of the Barwon-Darling shows that flows are declining and concludes the changes to the water-sharing plan are definitely a contributing factor.

But some farming communities in Queensland and the Upper Darling warn they cannot cope with the scale of water savings still to be made and the cut is essential for their survival. A vote is expected in in the next few days.



The changes to the water-sharing plan were complex, but combined with an earlier change in the NSW Water Act, which allowed much larger pumps, had the effect of allowing much greater extractions by irrigators during low flow events.



As one insider explained: “We moved to modernise the rules by allowing much bigger pumps, but then we did away with the safeguards that would apply during low flows.”

Facebook Twitter Pinterest Ian Cole, the former owner of Darling Farms and the chair of Barwon-Darling Water.

The documents reveal a series of meetings and representations made by Ian Cole, whose family owned Darling Farms, one of the biggest cotton producers at Bourke. He has since sold out to Webster Ltd for a reported $45m.

Cole is a big wheel in the Bourke community. He was chair of the irrigator group, Mungindi-Menindee Advisory Council later renamed Barwon-Darling Water. He’s also chair of Darling River Food and Fibre, which describes itself as a community and industry-based group, from Brewarrina through to the Menindee lakes on the Darling river.



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His wife’s family, the Busters, own the local Western Herald newspaper – though it’s now up for sale – and Cole was chair of the local community radio station, 2WEB. He’s also a councillor on Bourke council.

Water-sharing plans are legal documents similar to planning documents for land. They set the rules for when water can and cannot be pumped; they set caps on total extractions; and they include protections for environmental flows, Aboriginal interests in water, and the interests of farmers further downriver. So the wording of each and every clause is crucial.

While it was within the minister’s power to make amendments to a plan, insiders insisted that the normal practice was for the minister to accept the recommendations of the interagency panel, which had weighed up the often competing submissions from stakeholders.

“Generally ministers would rubber stamp the changes we recommended,” one former panel member told the Guardian.

But in the case of the Barwon-Darling plan, this was not the case.

The documents show that Cole, as head of Barwon-Darling Water, continued to lobby the minister after the public consultations closed in December 2011.

“Yes, I continued to talk to the department and the minister, as I was entitled to do,” he said. “If the government made changes after the public consultation process, maybe that was because they could see the logic in those changes.”

In a document from early 2012, the department reported to Hodgkinson about further representations made by Cole. These included access to water when a “cease to pump” declaration is in place due to low flows. This is known as the “notwithstanding” rule.



The department reminded her “it is part of the planning process that the panel review all comments made in submissions and revise their draft water-sharing recommendations accordingly”.

The department said the panel had already agreed to allow Cole to present the Barwon-Darling Water submission at its March meeting, and intended to circulate a “summary of outcomes from the panel meeting to all stakeholders”.

On 19 March, a company associated with Cole’s family, Gidgee Farms, bought more A and B class water licences as part of a purchase of a neighbour’s farm. These were later sold for $4.5m.

Facebook Twitter Pinterest A cotton crop in Western NSW. Photograph: Richard Hart/The Guardian

In about June 2012 the minister was presented with the water-sharing plan to be gazetted, with the aim being it would commence in August. It included a detailed brief of contentious issues and explained how the panel had sought to balance competing interests.



But that was not the end of the matter.



Documents show that Cole, on behalf of irrigators, took his concerns direct to the minister. He wrote on 14 May and again 31 July arguing for the 2006 “nothwithstanding” rules on low water flows.

Cole points out the government did not accept his central demand that the 2006 rules be reinstated. But the government made numerous changes to the rules for access to water by A class licence holders, when there were low flows or no flows of water in the river.

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According to an analysis by the NSW Environmental Defenders’ Office, the original draft put up for exhibition also included total daily extraction limits. These were either removed or not proclaimed. Individual daily extraction limits were provided for but never proclaimed.

Another rule change allowed water licence holders to take 300% of their entitlement in any one year. The department had recommended a 450% limit over three years be imposed as part of the water accounting rules, to avoid short-term extractions being larger than the long-term average flows in the river.



Proposed amendments to accommodate the most recent science on fish species were dropped.

In what appears to be bureaucratic self-preservation, a note from the Office of Water to the minister dated 4 October 2012 said: “As a result of discussions between Office of Water, the panel, Minister Hodgkinson’s office and Barwon-Darling Water post public exhibition, the version of the WSP submitted to the minister for consideration included numerous changes from the draft plan that was placed on public exhibition.”



A draft letter to Ian Cole to be sent from the minister said: “Following consideration of a number of WSP matters raised with me, I requested the Office of Water to make several amendments which, I believe, now present a fair and equitable outcome for all.”

The impact was significant.

According to some draft modelling by the Murray Darling Basin Authority in 2016, seen by the Guardian, the combined impact of the changes was that diversions of water for irrigation grew by 32% or 51.4 GL.



A recent review of the MDBA’s performance concluded: “In relation to the Barwon–Darling, the review finds that the current NSW water-sharing plan fails to provide adequate protection for environmental water, particularly during low flows.”

The events of 2011 and 2012 have left a sour taste among some farmers in the Barwon-Darling catchment, particularly those downstream from Bourke. Most had assumed that the changes recommended by the interdepartmental panel after public consultation would become law.



There is also a question mark over which version of the plan was submitted to the NSW minister for the environment, Robyn Parker, for her concurrence.

A spokesperson for the department of Industry was unable to provide a date that concurrence was given.

“The plan was signed by the then Minister for Primary Industries on 19 September 2012. The concurrence letter would have been received from the then Minister for the Environment within a day of concurrence being granted.”

Humphries declined to answer questions about his role and whether he was under investigation by Icac.



“The NSW government recently passed legislation to establish the new Natural Resources Access Regulator (NRAR), a crucial first step in creating an independent, transparent and accountable body to oversee compliance and enforcement of water laws in NSW.”

He said during 2011 and 2012 the Office of Water was responsible for determining when a temporary water restriction (a water embargo) was put in place or lifted. “The process does not allow one person to make this determination solely,” he said.

Hodgkinson referred the Guardian to her comments in parliament at the time of her resignation, after the Opposition suggested she had questions to answer about her tenure as minister.

“I am proud of my record as the Minister for Primary Industries. Compliance rules were greatly strengthened during my tenure and I oversaw the introduction of national award metering in the Murrumbidgee. I worked hand in glove throughout my time as Minister with the Commissioner of the Office of Water David Harriss, whose competence and honesty are above reproach.”