When a lawyer of the standing of Bret Walker SC uses language such as “maladministration”, “unlawful”, “gross negligence” and “indefensible” to describe the conduct of a statutory authority, it’s understandable that it attracts attention. While these findings are central to the report of his Murray-Darling Basin Royal Commission, they might on their own give the impression that he was only interested in undertaking a legal analysis of the drafting and implementation of the basin plan. He was interested in much more, writes Richard Beasley SC. To hear more on this topic, Richard will present at the 10th Water Symposium: Managing Legal and Regulatory Risk on 18 October.
Leaving aside the assistance given by so many fine scientists, there are a few passages of evidence that I would commend to our basin decision-makers first. One is the evidence of Grant Rigney, of the Ngarrindjeri nation, traditional owners of the lower Murray. He and his people aren’t just concerned about the health of the river. They are the river. They are its native fish, its plants. There were echoes of that in the evidence of Badger Bates of the Barkandji nation, from the Darling (Barka) River. I wonder what they think when they see it now? When you can step over it in one stride?
Then there’s the evidence of farmers from the lower Darling. About what a lack of flow in that river has done to their livelihoods, their families, their sense of worth. About the putrid smells from the water. And that was before a few million dead fish started floating to the surface like it’s part of some Old Testament plague.
When Phillip Glyde, the CEO of the Murray Darling Basin Authority, and federal minister David Littleproud insist that the basin plan is lawful, that it is based on science, and that it takes into account climate change in a meaningful way, they should keep in mind the evidence not just of scientists but of the First Nations people of the rivers, and those suffering farmers. Then they should withdraw those statements. Because they are nonsense.
The Water Act is a wonderful thing. It legislates the fact that we have over-allocated our rivers for irrigation. This has caused great harm, and must stop. The act provides that some water, allocated for irrigation, must now be returned to the environment, in order to reverse the degradation that has been caused. And it stipulates that this amount must be determined on the basis of the “best available scientific knowledge”. It was not. Not even close. Glyde and Littleproud can say it’s based on “science” until they are blue in the face if they want. It. Was. Not.
In finding that it wasn’t, Commissioner Walker did not just find that the Water Act had been misconstrued. That’s only half the story. He heard witnesses give evidence of a “fix”. Whereas the MDBA said the environment needed between 4000 and 7000 billion litres of water a year returned to it in 2010, within a year that figure was down to 2750. They said they changed their “modelling”. They have not made that modelling publicly available, so our scientists can check it. We have to trust them. I don’t. I don’t because the commission was told it was a running joke in the MDBA in 2011 that whatever the environment really needed, the recovery figure had to start with a “2”.
That’s politics, not science. Science is transparent, open, theories and conclusions can be checked, validated, invalidated. That’s not how the MDBA rolls. It keeps its “science” to itself. That means it’s not science.
Then the commissioner was told that when the CSIRO analysed what could be environmentally achieved from returning 2800GL a year to the environment in 2011, the MDBA forced the CSIRO to change its report, in material ways, to make those predicted achievements appear better. This caused such a loss of morale at the CSIRO, a mediator had to be called in.
The witnesses who told these stories made a really good fist of sounding like they were telling the truth. I’d put my house on it. If the MDBA, or the CSIRO, or the Commonwealth government wanted to suggest this didn’t happen, they could have sent counsel to the commission to cross-examine. They could have called their own witnesses. They did neither. Safe to assume these things happened. With your tax dollars. The commissioner described it as “maladministration”. Why are lawyers so polite?
Now the MDBA continues to insist that the basin plan has always taken into account climate change. Pull the other leg, please. No account for climate change projections was taken into account in setting the recovery figure for the environment. None. Despite the CSIRO advising the MDBA that it should.
It is getting hotter and dryer in the basin. The MDBA has determined a recovery figure for the environment based on historical climate and rainfall data up to 2009. Hello? It’s 2019. Have a look at the projections put out by the Californian government – relevant for what is likely to happen in south-eastern Australia, and the basin. It’s not pretty. The commissioner described the MDBA approach as not just negligent but “incomprehensible”. He’s not alone. We spoke to some highly qualified scientists who don’t get it either.
Phillip Glyde, anyone else from the MDBA, anyone else in the world could have come and told the royal commissioner that he was heading down the wrong path. He wasn’t, and they never did. That’s a pity. I can’t understand why they wouldn’t want to meet me. I’m very nice, for a lawyer. We might all be great friends now.
And with that in mind, based on the evidence of the wonderful scientists who assisted the commission, I might have the correct volume of water the environment needs tattoed on my backside. The figure starts with a “4”. Anytime the MDBA wants to act in accordance with the Water Act, they can come and give that number a kiss.
Richard Beasley SC came to the Bar in 1997, and was appointed silk in 2011. He has conducted cases and advised on matters involving; major administrative law, planning and environmental issues (such as Barangaroo, Allianz stadium and numerous mine approvals), and land acquisition matters. He has also appeared in a wide range of commercial, contract and valuation matters. Richard was recently selected by his peers for inclusion in The Best Lawyers in Australia (2020 edition) in the fields of Government Practice and Planning and Environmental Law, and was recognised in the 2019 edition in the field of Planning and Environmental Law. From January to February 2019, Richard was Senior Counsel Assisting the Murray Darling Basin Royal Commission. In June 2018 he was appointed by the NSW Minister for Local Government as Commissioner to the Blue Mountains Public Inquiry. In 2016 he was commissioner for the Auburn City Council Public Inquiry. In July 2016 Richard was appointed as the Principal Member of the Racing Appeal Panel by Racing NSW, and was reappointed for a further two year term in July 2018.
