Commissioner to find $13bn plan to restore river took into account factors other than the environment’s needs when it set the amount of water needed to be bought back from irrigators

This article is more than 1 year old

This article is more than 1 year old

The Murray Darling Basin Plan is likely in breach of the commonwealth act that underpins it – the Water Act 2007, the South Australian royal commission into the plan is expected to find.

The report of the royal commission into the Murray Darling Basin Plan is being handed to the state governor on Tuesday but it is up to the SA government when it is released.

Commissioner Bret Walker SC is understood to have adopted the recommendations of his counsel assisting that the plan breaches the Water Act because it took into account factors other than the environment’s needs when it set the sustainable level of “take” by irrigators.

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The “take” level was used to set the amount of water needed to be bought back from irrigators to ensure a healthy river.

That figure is 2750GL but scientists say it is too low, or at best, a bare minimum.

The report will come as a third fish kill in the Darling River near Menindee on Monday left the river carpeted in dead fish.

Play Video 0:44 More dead fish surface on the Darling River at Menindee – video

Menindee local Graeme McCrabb said it was worse than the second event on 7 January, which killed hundreds of thousands of fish.

“It’s about 10 kms to 15 kms upstream from the town and river is literally carpeted from one side to the other with thousands of bony bream,” he said.

“They’re still dying, so I don’t think we’ve seen the end of it yet,” he said.

A fish cleanup team, contracted by the NSW government has cleaned up closer to the town. The NSW primary industries minister, Niall Blair is due in Menindee this afternoon.

Last week the federal Labor MP Tony Burke, who was water minister when the Murray Darling Basin Plan was developed, wrote to Walker to express concern about the potential findings of the inquiry.

He cited suggestions the development of the plan to safeguard the river system took into account a “triple bottom line” approach of environmental, social and economic factors.

“This does not accord with my recollection,” Burke said.

“My recollection of the advice that I received and the approach taken, was that the sustainable level of take had to be determined based on the requirements of the health of the basin.

“How that was then delivered could be optimised, in line with the Water Act and the international agreements that underpin it, taking into account environmental, economic and social concerns.”

Walker responded the next day: “The submission made to me by counsel was that what you fairly call ‘economic and social concerns’ did affect the ultimate determination of environmental parameters – although in a manner still not disclosed by the [Murray-Darling Basin Authority],” he wrote.

In his closing submission to the inquiry, counsel assisting the royal commission Richard Beasley SC said taking into account social and economic factors when setting environmental flows had “misinterpreted the Water Act … in a crucial way” in setting the environmentally sustainable level of take.

Walker said assuming Burke’s recollection was correct, “documents before the commissions showed the advice you were given is not consistent with the contemporaneous records and reports tendered at the commission hearing”.

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If Walker is correct – he is one of the most eminent lawyers in Australia – then the entire $13bn plan to restore the river is likely invalid, though it may take a legal challenge to overturn it.

It also raises serious questions about whether the goals of the plan to reclaim water are adequate.

More recently the targets for water recovery for the environment have been cut further: 70GL has been cut from the northern basin target of 390GL, and 605Gl from the southern basin, with plans to recover that water through a series of projects.

One of those projects is the Menindee Lakes project, which is coming under intense scrutiny in the wake of fish kills.

The SA royal commission was hampered in collecting evidence from federal bureaucrats and minister after the commonwealth directed its staff not to appear.

Burke, now opposition minister, did not appear before the commission.

But many top scientists appeared and almost all gave evidence that the environmental targets in the plan were not adequate to ensure a healthy river. The plan has been further compromised by poor administration and enforcement.