38
Indeed approximately 12 years on from the WA’s introduction and seven years on
from the MDBP’s, there is little or no evidence that the river system is much healthier (Jackson 2016; Grafton et al. 2018a, b). Leading scientists have claimed that the
MDBP, whose aim is to ‘return to an environmentally sustainable level of [water]
extraction’) (MDBP 2012 ch 5, s5.05), ‘is failing to restore the river’s health’
(Davies et al. 2019). Rivers are running dry (Davies et al. 2019) while smaller scale
water-dependent farmers and agriculturalists claim to be priced out of the water
market (Hunt 2019), threatening their continued operation, and impacting on the
nature and extent of food grown and produced (Gribbin 2019). Meanwhile, large,
often multi-national investors, are entering the field and expanding the production
of water-thirsty crops such as cotton and nuts (ABC Four Corners 2017; Aither 2019).
Although the terms, ‘thieves, shady deals and murder’ are more commonly associated with crime gangs and underworld characters, it is perhaps not too far off the
mark to see the emerging MDB water management narrative in a similar, unfavourable (if somewhat colourful) way. Water has been ‘stolen’ by some irrigators. In
other cases, it has been bought back for the environment under questionable commercial deals, and fish in the Menindee Lakes have been ‘murdered’ by their thousands. The picture is a disturbing one.
The chapter argues that there is an urgent need for a more pro-active approach to
monitoring, compliance and enforcement and it calls for: (a) acknowledgement of
the ‘rationalist fallacy’ (Brown et al. 2016) in water law and governance; (b) a
multi- pronged approach to water reform and governance and (c) greater transparency in relation to science-led water law and governance.
2 Background
The MDB is Australia’s food bowl (Gray 2019). It is simultaneously a recreational playground, the habitat of flora and fauna, and a culturally important
place (MDBA 2019a, b). The river system is also significant in its own right (The
Green Institute 2019; International Union for Conservation of Nature 2010).
However, or perhaps because of this, the MDB has proved difficult to govern
(Gray et al. 2017, ch 1; Carmody 2017).
The MDBP is a legislatively mandated tool of the WA and is designed to restore
MDB health by: (a) setting a Sustainable Diversion Limit (SDL) restricting how
much water may be taken from the basin; (b) facilitating the buying back of water
entitlements for the environment; and (c) funding infrastructure/efficiency programs, so less water is used. The MDBP is in many ways, an aspirationally laudable
instrument because its objectives are hopeful, progressive and ‘green friendly’ but
its implementation thus far, has proved little short of catastrophic (Walker 2019,
p. 5, p. 11).
Both the WA and the MDBP (Commonwealth instruments) operate in tandem
with state-based laws, such as the Water Management Act 2000 NSW (WMA) which
sets up a comprehensive system of (a) water licensing through water entitlements
and allocations and (b) water plans (Gardner et al. 2018, chs 2, 12, 15 and 25). With
J. Gray
Indeed approximately 12 years on from the WA’s introduction and seven years on
from the MDBP’s, there is little or no evidence that the river system is much healthier (Jackson 2016; Grafton et al. 2018a, b). Leading scientists have claimed that the
MDBP, whose aim is to ‘return to an environmentally sustainable level of [water]
extraction’) (MDBP 2012 ch 5, s5.05), ‘is failing to restore the river’s health’
(Davies et al. 2019). Rivers are running dry (Davies et al. 2019) while smaller scale
water-dependent farmers and agriculturalists claim to be priced out of the water
market (Hunt 2019), threatening their continued operation, and impacting on the
nature and extent of food grown and produced (Gribbin 2019). Meanwhile, large,
often multi-national investors, are entering the field and expanding the production
of water-thirsty crops such as cotton and nuts (ABC Four Corners 2017; Aither 2019).
Although the terms, ‘thieves, shady deals and murder’ are more commonly associated with crime gangs and underworld characters, it is perhaps not too far off the
mark to see the emerging MDB water management narrative in a similar, unfavourable (if somewhat colourful) way. Water has been ‘stolen’ by some irrigators. In
other cases, it has been bought back for the environment under questionable commercial deals, and fish in the Menindee Lakes have been ‘murdered’ by their thousands. The picture is a disturbing one.
The chapter argues that there is an urgent need for a more pro-active approach to
monitoring, compliance and enforcement and it calls for: (a) acknowledgement of
the ‘rationalist fallacy’ (Brown et al. 2016) in water law and governance; (b) a
multi- pronged approach to water reform and governance and (c) greater transparency in relation to science-led water law and governance.
2 Background
The MDB is Australia’s food bowl (Gray 2019). It is simultaneously a recreational playground, the habitat of flora and fauna, and a culturally important
place (MDBA 2019a, b). The river system is also significant in its own right (The
Green Institute 2019; International Union for Conservation of Nature 2010).
However, or perhaps because of this, the MDB has proved difficult to govern
(Gray et al. 2017, ch 1; Carmody 2017).
The MDBP is a legislatively mandated tool of the WA and is designed to restore
MDB health by: (a) setting a Sustainable Diversion Limit (SDL) restricting how
much water may be taken from the basin; (b) facilitating the buying back of water
entitlements for the environment; and (c) funding infrastructure/efficiency programs, so less water is used. The MDBP is in many ways, an aspirationally laudable
instrument because its objectives are hopeful, progressive and ‘green friendly’ but
its implementation thus far, has proved little short of catastrophic (Walker 2019,
p. 5, p. 11).
Both the WA and the MDBP (Commonwealth instruments) operate in tandem
with state-based laws, such as the Water Management Act 2000 NSW (WMA) which
sets up a comprehensive system of (a) water licensing through water entitlements
and allocations and (b) water plans (Gardner et al. 2018, chs 2, 12, 15 and 25). With
J. Gray