No Relief For “Stressed” Gwydir Wetlands

Sydney, February 9, 2005: The Environmental Defender’s Office is disappointed by today’s decision in the New South Wales Court of Appeal to dismiss an appeal by the Nature Conservation Council of NSW challenging the validity of the Water Sharing Plan for the Gwydir Regulated River Water Source 2003.

The Environmental Defender’s Office (NSW) and barristers Tim Robertson SC and Jayne Jagot, acting on behalf of the NCC, argued that the plan should be declared invalid because it failed to adequately address environmental necessities, such as performance indicators and environmental flows.

The Court’s decision not to invalidate the plan was made notwithstanding the Court’s finding that the Minister for Natural Resources had failed to satisfy the statutory requirement to set aside water for environmental health prior to allocating water for irrigation and other consumptive purposes.

The Gwydir River is located in the environmentally stressed Murray-Darling Basin and comprises the internationally significant Gwydir wetlands. In NSW, water sharing plans are to set the basis for allocating water for environmental and consumptive uses. The Court of Appeal’s judgment clearly found that the statutory framework in the Act is intended to prioritise environmental flows and maintain the health of the Gwydir river system and its wetlands.

EDO Principal Solicitor, Ilona Millar says, “While the Court of Appeal’s decision upholds the legal validity of the Gwydir WSP, the fact remains that the Minister failed to give effect to the statutory priorities in the Act. It is extremely disappointing that, although NSW has not demonstrated that the basis for determining environmental flows is scientifically sound or ecologically sustainable, the general rules provided in the Gwydir WSP are considered legally sufficient.”

In December 2004, the National Competition Council recommended that $26million of NSW competition payments be withheld on the basis that NSW had failed in its obligation under the water reform agreement signed by federal, state and territory governments in 1994 and the 2004 National Water Initiative to demonstrate that it had set environmental allocations and extraction limits using best available science.

The Environmental Defender’s Office and Nature Conservation Council are reviewing their options in light of today’s decision.

For more information contact:

Jeff Smith (Director) or Ilona Millar (Principal Solicitor), Environmental Defender’s Office:
9262 6989