The head of the royal commission into the Murray-Darling basin plan has recommended a complete overhaul of the scheme, including reallocating more water from irrigation to the environment.
Releasing its report on Thursday, the South Australian Murray-Darling basin royal commission found the original plan ignored potentially “catastrophic” risks of climate change.
Bret Walker SC’s report also found commonwealth officials had committed gross maladministration, negligence and unlawful actions in drawing up the multibillion-dollar deal to save Australia’s largest river system.
The investigation into the plan, prompted by allegations of water theft by New South Wales cotton farmers which first aired on the ABC in 2017, recommended major reform, including resetting water-saving limits, repealing the outcome of the northern basin review, dumping major projects, like the Menindee Lakes project, proposed by NSW, and new measurements for water on floodplains.
The report comes as drought grips the Murray-Darling basin. Rivers have stopped flowing in north-west NSW, leaving some towns on severe water restrictions.
Several major fish kills in NSW, including two of unprecedented scale at Menindee on the lower Darling, have resulted in hundreds of thousands of fish dying, leading to renewed questions about management of the river system by authorities. The lakes were drained twice in 2016 and 2017 as the drought hit.
The 746-page report contained 111 findings and 44 recommendations.
Walker was particularly critical of the plan’s lack of consideration of climate change and has called for it to be central to a rewrite of the plan.
He pointed to the 2008 CSIRO study which said the the southern basin would get warmer and drier, likely resulting in “significantly less run-off into the river systems in the 21st century”.
“Based on the evidence of climate change experts, these projections are conservative – it is possible the reduction in run-off could be catastrophic ,” he warned.
He has also said the factors considered when the governments set the “environmentally sustainable level of take”potentially render the plan invalid. “The Water Act requires environmental priorities to be given primacy when determining an ESTL,” Walker said.
Instead he found that the government had adopted what it calls a “triple bottom line” approach, where it considered economic and social factors to reduce the recovery target for the environment.
“That phrase is an inappropriate figure of speech or political slogan that the MDBA has unwisely adopted,” he said.
He warned that the plan was vulnerable to being declared invalid, though he rejected allegations that the commission was somehow encouraging this path.
He also called for a fresh review of the northern basin, which had been subject to “gross maladministration by the MDBA”.
“It is an example of how the current management of the MDBA has shown itself unwilling and incapable of fulfilling its statutory functions and obligations,” he said.
The decision to cut the amount of water recovered for the environment in the Northern Basin by 70 gigalitres was “unlawful” and should be dumped. He said unchallenged evidence from the Wentworth Group of scientists and others was that the Macquarie marshes and the Narran lakes were already degraded.
He called for more water to be recovered from the environment and said that if the best available science was adopted, as the act required, there would need to be more buybacks from farmers in the northern basin.
As for the southern basin, where the government is planning to achieve 605GL of water savings, the commissioner was equally critical. He said the program was “beyond the power” of the MDBA and could cause “serious adverse ecological impacts”.
He was particularly critical of the Menindee lakes project – NSW’s main water saving project. It involves shrinking the lakes and emptying them more often to save water from evaporation.
Locals and scientists have warned it will lead to an even greater ecological catastrophe than the fish kills in the adjacent river.
Walker said it was “problematical” that the project could meet the requirement that it produce “equivalent environmental outcomes” given its important role as a source of flows for the imperilled lower Darling and as a fish nursery.
The insistence of NSW water minister, Niall Blair, that the project must proceed in the aftermath of the fish kills was “grossly irresponsible” and his threat that blocking the project would blow up the basin plan itself was “designed to menace”.
Walker also criticised the slow progress on developing water sharing plans – the nuts-and-bolts rules that underpin water sharing – saying NSW and Victoria had shown a lack of commitment.
He also called for the states to review their water resource plans to expressly recognise and authorise the taking and use of water by Indigenous people in exercise of native title rights.
The premier of South Australia, Steven Marshall, said his government, which is at the end of the river, would carefully consider all of the recommendations and would not make a rushed response.
But as the state at the end of the river system, it has a greater stake in ensuring the plan works. Marshall asked the prime minister to call an urgent meeting of states and territories to discuss the way forward.
Blair and the NSW deputy Premier, John Barilaro, who was in Menindee to inspect the site of the fish kills on Thursday, made it clear they would resist further cuts to the water entitlements of farmers, as recommended by the report.
“We will fight tooth and nail for our rural and regional communities,” the Nationals politicians said. “They need certainty. They need to know they have a future in the towns they love, communities they work in and the places they raise their families.
“The gloves are off when it comes to fighting for our water rights.”
The MDBA said it was “confident the plan has been made lawfully and is based on best available science”. It rejected “any assertion that it has acted improperly or unlawfully in any way”.
The Australian Conservation Foundation urged governments to ensure that the plan complied with environmental obligations of national water law and took account of climate change science.
“Despite the denials of some politicians, industry figures and regulators, the royal commission has detailed significant failures by those charged with restoring our most important river system,” said the ACF director, Dr Paul Sinclair.
“The findings of the royal commission fit a consistent pattern of behaviour from Australian governments that has resulted in environmental disaster and the catastrophic loss of wildlife.”
The independent NSW MP Jeremy Buckingham said the Darling/Barka River was on the “very brink of no return”, which showed that hard decisions needed to be taken.
The royal commission was hampered by a decision by the federal government to block its bureaucrats from giving evidence. But most of Australia’s scientists with expertise in the Murray-Darling basin, climate change and river environments testified.