On 19 March 2020, the NSW Land and Environment Court delivered judgment in WaterNSW’s prosecution of two irrigators in the northern Murray-Darling Basin. The Court found that the irrigators extracted water from the Barwon-Darling River in contravention of a condition of their water supply works and use approval, which is an offence under the Water Management Act 2000.
EDO and our clients have been working to protect the people and environment along the Barwon-Darling River / Barka for many years. The conclusion of this prosecution is an important component of broader efforts to ensure compliance with water laws in the Murray-Darling Basin, and the protection of the communities, species and ecosystems that depend on healthy rivers.
Here, EDO lawyers Matt Floro and Dr Emma Carmody analyse the judgment and discuss important reform measures that should be adopted as a matter of priority.
By Dr Emma Carmody, Special Counsel, Matt Floro, Solicitor, and Lokgei Lee, volunteer Paralegal
Analysis: WaterNSW v Harris (No 3)  NSWLEC 18
With the NSW Land and Environment Court recently handing down judgment in WaterNSW v Harris (No 3)  NSWLEC 18, it is an appropriate time to discuss the importance of robust and accountable water management systems in the Murray-Darling Basin (MDB). In this analysis, we first outline the key findings in the judgment and then highlight opportunities for important reforms in the MDB.
In the case, the prosecutor (WaterNSW) alleged that two irrigators had contravened a condition of a water supply works and water use approval that they held jointly, during the period between 22 June to 27 June 2016 (the “charge period”). The irrigators were each charged with an offence against the Water Management Act 2000 (NSW) (WM Act).
The approval in question authorised the use of pumps to take water from the Barwon-Darling River for irrigation at a property near Brewarrina in North-West NSW. It contained, as the Court found, a condition that prohibited the taking of water when the flow of the river was below a certain threshold (in this case, when the flow of the Darling River was equal to or less than 4,894 megalitres per day at the Bourke river gauge).
The Court found beyond reasonable doubt that, during the charge period, the defendants took water from the river when the flow of the river was below the required level set by the approval condition, and convicted each of them of an offence against the WM Act.
The matter was brought by WaterNSW as prosecutor and heard before the Court over five days in February 2019. The issues raised in the proceedings included the validity of the approval condition, whether WaterNSW had properly notified the defendants of the inclusion of the condition in the approval, and the accuracy and reliability of flow rate and river height records maintained by WaterNSW.
The Court accepted WaterNSW’s evidence about the reliability of its methods and data, and found that WaterNSW had adopted, with minimal uncertainty, comprehensive procedures in collecting, processing and analysing flow rate data. The Court also accepted that the river height data was reliable within an appropriate margin of error.
Ultimately, the Court found, beyond reasonable doubt, that the defendants were subject to the approval condition and that it had been breached during the charge period, in contravention of section 91G(2) of the WM Act. The Court stood the proceedings over to a future date to determine sentencing.
Opportunities for reform
This judgment provides an opportunity to reflect on some key aspects of water law and policy that are in need of reform in NSW and, in certain instances, across the entire MDB.
First and foremost, the most effective means of ensuring that water users are complying with applicable laws is to accurately measure all water take and ensure that this measurement can be independently verified by the regulator in real time through the use of telemetry. Telemetry is a system whereby water use data is transmitted automatically from pump meters to the regulator via the telecommunications network. While amendments to the WM Act and Water Management Regulation (General) Regulation 2018 (NSW) passed in late 2018 will significantly tighten metering requirements across the State, they contained a number of exemptions and did not mandate universal telemetry. In addition, the NSW Government has delayed their implementation by one year.
We therefore strongly recommend further amendments to legislate a ‘no meter, no pump’ rule and universal telemetry. These changes would have the added benefits of reducing costs for the regulator (noting that it is very expensive to send staff out across vast areas to read meters and collect evidence) and of helping irrigators to improve their social licence. In terms of the latter, telemetry would provide users with an opportunity to demonstrate that they are abiding by the law on a real time basis. The EDO advises hundreds of farmers, many of whom have indicated that they would like to see a system in place that not only guarantees compliance, but also protects their reputations – and the reputations of other law abiding landholders.
Second, the Australian Government has to date spent some $6.5 billion on reallocating water to the environment in the MDB (through a combination of buying back water licences from willing sellers and modernising irrigation infrastructure). However, in many catchments this water can be legally extracted for irrigation purposes. The EDO and many of our clients strongly recommend introducing mandatory protection of this water in the legal instruments that govern water sharing at a catchment scale. It defies logic for the government to purchase water to restore the health of the Murray-Darling Basin and then allow it to be pumped for private gain.
Third, the EDO and many of our clients are concerned that ‘priority of water use’ provisions in the WM Act are not being enforced in all instances. Under these provisions, ‘stock and domestic use’ is generally required to take priority over extractions for irrigation purposes. The EDO has received a number of complaints from farmers who believe that pumping for irrigation is occurring to the detriment of stock and domestic access (or even higher priority irrigation licences) further downstream. In making this observation, it is important to note that the existence of a law is not the same as enforcement of the law. We therefore strongly recommend that the government commission an independent, third party review of this issue to identify possible problems and propose appropriate solutions (noting that any breaches of these provisions could lead to litigation).