ENVIRONMENTAL DEFENDERS

OFFICE (QLD) INC.

By Jo Bragg August 2000
Principal Solicitor of EDO (Qid)

 

Introduction
The Water Act 2000 ('Water Act') was passed by Parliament on 7 September 2000 and is expected to partly commence operations in September 2000. It will repeal and replace the Water Resources Act 1989. Chapter 2 of the Water Act deals with water allocation and management including preparation of water resource plans, which are crucial water planning documents of which the best known type is more commonly called a water allocation and management plan ('WAMP').
WAMPs lead to water allocations. For the first time in Queensland water allocations cannot be changed within ten years of plan approval without payment of compensation to holders of allocations. This increased security for holders of allocations is a problem for future water management unless the new water resource plans protect ecology, which entails in many cases clawing back sufficient water from consumptive users to reverse and stop ecological degradation. The community needs to pressure government as much as it can to see this occurs, particularly by lodging submissions on draft water resource plans released or to be released.
This article provides useful information for those who are preparing or have prepared submissions on draft water resource plans such as required contents, access to information and what to do if plans are deficient. The table at the end of this article shows the release date of various draft water resources plans. The contents of draft water resource plans must comply will the requirements of s.46 of the Water Act. The process for preparation of a water resource plan is not discussed in this article as it does not apply to draft water resource plan released before commencement of the Water Act 2000.

Water Resource Plans must include ecological outcomes
'Ecological outcomes' means a consequence for an ecosystem in its component parts specified for aquifers, drainage basins, catchments, sub catchments and water courses. All water resource plans must state outcomes, including ecological outcomes for the sustainable management of water.
Thus the consequence for an ecosystem (or for that matter, for the economy, must be in accordance with the concept sustainable management, the key part of the purpose of Chapter 2 of the Act.

Sustainable Management
Sustainable management is management that-
1. allows for the allocation and use of water for the physical, economic and social wellbeing of the people of Queensland within limits that can be sustained indefinitely; and
2. protects the biological diversity and health of natural ecosystems; and
3. contributes to-(a list of 9 actions).
Thus sustainable management means that protection of biological diversity and health of ecosystems must occur, AND indefinitely sustainable use of water AND some contribution (which may fall short of full achievement) is made to each of the nine listed actions. Notably, the strongest pro-development action of the nine is the economic development of Queensland in accordance with the principles of ecologically sustainable development, which are defined in the Water Act.
The definition of sustainable development excludes water use that cannot be sustained indefinitely and excludes economic development that is not within the principles of ecologically sustainable development.
It is advisable to carefully scrutinise draft water resource plans to see if the outcomes (ecological or economic) are for sustainable management. Many draft plans were drawn up before the definition of sustainable management was finalised or the references to best scientific information available were added to drafts of the Water Act.

Reliance on the best scientific information available
The water resource plans must also include strategies proposed to achieve the outcomes to the extent possible from the best scientific information available. Thus the strategies in the plan must be based upon best scientific information, not upon best politics. The provisions concerning technical assessment are set out in the process sections of the Water Act and have no bearing for transitional plans like the Condamine WAMP that must only comply with s.46 containing prescription about the content of plans.

Environmental Flow Objectives are linked to sustainable management
Water allocation and management plans (like the Condamine WAMP) are the only type of water resource plan that will lead to water licences being converted to valuable water allocations (see compensation below). Thus in addition to strategies and outcomes that all water resource plans must have, those WAMPs must state environmental flow objectives, water allocation security objectives and performance indicators for those objectives.
Environmental flow objective, for a water resource plan means a flow objective for the protection of the health of natural ecosystems for the achievement of ecological outcomes
Submitters need to check that ecological flow objectives are linked back to ecological outcomes for draft WAMPs, as is legally required. It is also important to give some thought to meaningful performance indicators, and to other matters such as how to monitor those indicators.

Has the plan got it right? Monitoring and periodic reporting.
A water resource plan must state the water and natural ecosystems monitoring requirements to assist in assessing the effectiveness of the proposed management strategies in achieving the outcomes. A water plan must state the periodic reporting for the plan. This means it must specify what period is covered by the report and the time within which the report must be prepared. The Minister for Natural Resources (the 'Minister') is responsible for preparing the report, and it must include (amongst other things) a summary of the findings of research and monitoring and an assessment of the effectiveness of the implementation of the plan in meeting the plan's objectives.
Water resource plans are not required to contain triggers for early review. The only occasion where the Minister is obliged to prepare a new water resource plan or amend the existing water resource plan (other than to avoid the automatic lapse of the plan ten years after it is approved) is where the Minister is satisfied that the periodic report, that he or she has prepared, shows a water resource plan's environmental flow objectives or water allocation security objectives are no longer appropriate for the plan area or are not being met.

A focus on compensation
There are compelling financial reasons why the State government must now properly protect ecosystems in water resource plans, especially so for WAMPs. This is because holders of water licences have no right to compensation if their entitlements are reduced (for example, to restore flows to wetlands) when these new water resource plans are approved so ecological problems can be addressed without paying compensation.
However if it is necessary to adjust WAMPs within ten years of their approval, for example due to evidence of ecological damage in the plan area, then holders of allocations that have those allocations reduced can claim compensation. No such entitlement to compensation existed under the Water Resources Act 1989 so this is a major change in policy.
It is likely that the State government, particularly the highly influential Treasury Department will strenuously resist adjusting allocations if it means paying compensation, even if serious degradation is revealed in periodic reports. Thus it is essential that members of the Queensland community interested in the water quality and ecological health of rivers, wetlands and streams use every means at their disposal now to influence the contents of water resource plans, especially WAMPs.

Requirements of a valid submission
In preparing the final water resource plan the Minister must consider all properly made submissions about the draft plan.
A properly made submission means a submission that-
1. is made by a person invited to make the submission; and
2. is in writing and is signed by each person who made the submission; and
3. is received on or before the last day for the making of a submission; and
4. states the name and address of each person who made the submission; and
5. states the grounds of the submission and the facts and circumstances relied on in support of the grounds; and
6. is received by the person stated in the notice inviting the submission.

Access to Information
The public is not legally entitled to access supporting documents to the draft Condamine WAMP for example, but instead must use political pressure to obtain those documents or others needed. That draft plan released for public comment does include some information. It has a plan overview, list of reference documents, relevant tables and the text of the draft plan itself. The plan overview refers to the work of the Technical Advisory Panel, the Community Reference Panel and the Indigenous Working Group and includes various useful tables.

The Water Act does provide that certain documents must be made available for public inspection and purchase at the relevant head and regional offices of the Department of Natural Resources during office hours on business days. For the Condamine and other transitional water resource plans those documents include the approved water resource plan, the report by the Minister on the consultation process (prepared after plan approval) and each periodic report on a water resource plan (mentioned above). For water resource plans prepared after the commencement of the Water Act, a greater array of information concerning the process prior to plan approval must be made available for inspection and purchase.

Legal action on deficient Water Resource PIans
Final water resource plans are subordinate legislation, which means that they must be laid before Parliament and could be subject to a motion of disallowance. A final water resource plan might be beyond the power (ie. ultra vires) of the Water Act and therefore invalid if for example its contents did not comply with s46 requirements. Obtain legal advice if that occurs or you think it is about to occur as it may be possible to seek an order using the Judicial Review Act 1991.

Checklist for Submitters
The following checklist could be useful in preparing a submission on a draft water plan released before commencement of the Water Act 2000.
1. Does the plan contain ecological outcomes? Are they specific enough to be meaningful?
2. Are there any outcomes (including economic) for sustainable management? Do the strategies and environmental flow objectives achieve the outcomes?
3. Are the strategies based on best scientific information available? Ask the Department of Natural Resources for a copy of technical assessments.
4. What monitoring requirements are included? Are they adequate and meaningful for reviewing the plans effectiveness?
5. Are periodic reporting requirements in the plan set for the right period after plan preparation? Will the periodic report be made public in time for action to be taken to amend the plan and avoid adverse consequences?
6. Are the plan rules for dealing with unallocated water appropriate?
7. Does your submission fit the definition of a properly made submission? Make sure you lodge it by the due date.
8. Have you networked with other environmental and community groups, rural people, politicians and public servants to promote your ideas?

Webpage
The Department of Natural Resources water resource plans webpage is:-
http://www.nrm.qld.gov.au/resourcenet/water/wrp/index.html

Document Release Date Submission Deadline
Burdekin WRP Information Report 22 March
Burnett Basin ROP 4 April
Draft Barron WRP 12 April
Draft Pioneer WRP 12 April
Re-drafts of the Warrego, Paroo, Bulloo and Nebine WRP Within next 2 months
Moonie WRP Within next 2 months
Condamine-Balonne WRP Within next 2 months
Draft Border Rivers WRP Within next 2 months
Mary WRP Information Report Within next 6 months
Flinders WRP Information Report Within next 6 months
Logan WRP Submissions closed 31 January
Draft Georgina/Diamantina WRP Awaiting release
Draft Boyne ROP Submissions closed 15 February
Draft Fitzroy ROP Release date unknown

* Subject to Office of Parliamentary Council priorities, comments, consultation processes and issues and Cabinet priorities.