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- 23 June 2004
Water Management Amendment Bill
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Page: 9901
Second Reading
Debate resumed from an earlier hour.
Mr IAN COHEN [3.32 p.m.]: Earlier I read onto the record part of the resolution of Newcastle City Council. I shall conclude reading that resolution.
• There should be no granting of new water licences in the Hunter catchment before scientific studies are carried out, looking in particular, at environmental flows and the effect on the Newcastle's Ramsar-listed wetlands in the Hunter Estuary.
Council notes that only water sharing plans developed in the Hunter are for the Wybong Creek catchment and the Tomago Tomaree Stockton Groundwater Source.
Council also provided background information to the resolution, which stated:
According to the Australian Water Resources Assessment 2000 the Hunter River is highly stressed, with major areas of over-allocation (greater than 100% of flow!).
The NSW Government is proposing to lock in place perpetual water licences before the scientific studies have been undertaken.
For several years, Council has been investigating the Hunter River Estuary in order to manage the estuary in an ecologically sustainable way. This process is continuing with the proposal before Council to undertake the Management Study and prepare a draft Management Plan.
The work of Newcastle City Council could be undermined if the State Government grants perpetual water licences in the Hunter before the scientific studies are undertaken.
I ask the House to consider this fact in conjunction with council's resolution and background material, and that water in many of the State's rivers is already overallocated. Add to that the fact that when sleeper and dozer water licences are activated—and they are often concentrated in one location to service large irrigation projects—river systems will not be able to cope because the demand for more water will be far greater than the water available. There is much to say about the impact of a perpetual licence scheme, and I will deal with that matter in more detail later.
One of the great myths that the Carr Government continues to peddle is that the significant problems with water allocation in regional New South Wales are due to the drought. The Carr Government would have us believe that it is the drought that has prevented water being released from dams and sent down river systems to flood wetland areas and keep them alive, and to help graziers and many others on family farms survive. The Carr Government would have us believe that it is simply the drought that is destroying internationally significant wetland and marsh areas, which have survived numerous droughts over many hundreds and thousands of years. Of course, a drought means that there is less water, so why are irrigators along the Lower Gwydir River and the Macquarie River receiving more water than their licence allocations allow? To illustrate the imbalance, in the past year irrigators have received 350,000 megalitres of water from Burrendong Dam, while the entire Macquarie Marshes area received 40,000 megalitres.
The Hon. Rick Colless: It's a drought.
The Hon. Duncan Gay: Haven't you heard of droughts?
Mr IAN COHEN: I acknowledge the interjections by members of The Nationals. Their argument hardly holds water when one realises that 350,000 megalitres of water was released from Burrendong Dam for irrigators last year—not for environmental flows or to maintain flows during drought. It is a fact that internationally important wetland areas on the Macquarie, Lower Gwydir and Gingham rivers are dying because of a lack of water while Minister Knowles and Premier Carr shadow box with Queensland over water.
The Hon. Rick Colless: That is true.
Mr IAN COHEN: I thank the Hon. Rick Colless for at least acknowledging that we have a serious problem of the Government diverting the public's attention by running lines that are totally inappropriate. Surely some members of The Nationals in this House maintain a clear view of the water situation. I shall have more to say on that later. The Premier has even gone so far as to suggest that it is Queensland's fault that water is not making it into the Macquarie Marshes. The Macquarie River does not originate in Queensland; it originates near Bathurst and heads north. Cubbie Station has nothing to do with a lack of water in the Macquarie Marshes, unless Bob Carr thinks that water flows uphill—to adopt words used by Sue Jones, a landowner at Boomanulla, who attended the water forum I hosted here at Parliament House. Wetlands are dying because the New South Wales Government continues to deny them the water they need to survive. Instead of recognising the problem and using new water sharing plans at the beginning of July to increase environmental flows, the Premier and the Minister have chosen to fight a mock war with Queensland.
In the Macquarie Marshes there has not been a bird breeding season for four years due to a lack of water, and essential vegetation, such as reed beds and red river gums, is dying or has disappeared. I do not expect members opposite to take an interest in this, but many native plants and animals do not survive over a four-year period. Although they are hardy and survive through the most difficult conditions, when one adds the impact of water extractions for irrigation and the drought together there is a certain point at which these species will not survive. So we have the simplification of these wetland areas. Wetland areas are, by nature, wet, even in drought. The real damage is done when water available in dams upstream is given away to irrigation businesses and the wetlands are left parched. The Carr Government continues to insult people in the bush by suggesting that the drought is the only reason that wetlands and river systems in this State are dying.
The Hon. Duncan Gay: They are probably dying because they are getting an artificial environmental flow—something that isn't natural.
Mr IAN COHEN: The Deputy Leader of the Opposition has a good point. Many times I have seen artificial flows—but they have not been for the environment, they have been for the irrigation industry, and at the wrong time of the year. I remember once seeing the Cudgegong Creek from miles away in the middle of a drought, when not one plant was alive. The creek had a huge flow of water but it was the wrong time of the year and the water temperature was wrong. The water was coming out of a dam, ripping away the habitat of many threatened species in the creek area, and all for the purpose of supplying irrigation water. So it is not environmental flows that do damage; irrigation water going down the creek out of season does the damage.
The Hon. Rick Colless: They did the same thing in the Lachlan River with environmental flows. Some 25,000 megalitres went down the Lachlan River in January and it did more damage.
The Hon. Duncan Gay: There is no water in Broken Hill because of the Menindee water they put in the environmental flow.
Mr IAN COHEN: I thank members for their contributions to the debate.
The Hon. Duncan Gay: We could spend some time on this.
Mr IAN COHEN: I think we will. Indeed, I am glad that the Deputy Leader of the Opposition recommends that we spend some time on this, because I intend to do just that. Earlier this month my office organised an information evening to discuss the proposed changes to the Water Management Act. We invited Sue Jones, a landholder at Boomanulla near Quambone—I do not think I have heard about Quambone since the Hon. Doug Moppett talked in eloquent terms about his local area—on the edge of the Macquarie Marshes, to inform people who attended about what is happening in the marshes. About 100 people came to hear Sue speak because there has been little information available, apart from the Government's version of reality, about what is happening in the bush over water use and allocation.
The Hon. Duncan Gay: What does Garrett reckon?
Mr IAN COHEN: I suggest that the honourable member consult the Labor Party on that matter. My great fear is that there may be a relationship between western New South Wales environmentally and the lack of tonsorial skills of the good potential member.
The Hon. Duncan Gay: So you not only criticise his environmental credentials but criticise his vocal credentials as well.
The Hon. Henry Tsang: Point of order: I ask you to direct Mr Ian Cohen to address his remarks to the Chair, rather than hold a private discussion with members opposite.
[[ltab]][[ltab]The DEPUTY-PRESIDENT (The Hon. Patricia Forsythe): Order! I uphold the point of order and ask the member to address his remarks through the Chair. At the same time I remind other members that interjections are disorderly.
Mr IAN COHEN: Whether it is Pine Gap or New South Wales, there seems to be a parallel relating to the potential new member that I was tempted to draw. The Macquarie Marshes is a large, semipermanent wetland in central New South Wales covering approximately 200,000 hectares. A small portion, 10 per cent, is a nature reserve managed by the New South Wales National Parks and Wildlife Service. The remaining 90 per cent is privately owned and has been held by some families for several generations. These property owners have an extraordinary knowledge and understanding of all aspects of the marshes. The Macquarie Marshes Nature Reserve and the privately owned Wilgara wetland are listed as internationally important wetlands under the convention on wetlands, called the Ramsar Convention, which was signed in Iran in 1971.
The nature reserve also provides habitat for migratory water bird species listed under the Japan-Australia Migratory Bird Agreement and the China-Australia Migratory Bird Agreement, well known as JAMBA and CAMBA. The Macquarie Marshes is a unique area both environmentally and economically. It is the most important colonial nesting water bird breeding site in Australia for species diversity and nesting density. Species include little, intermediate, greater and cattle egrets; straw-necked, sacred and glossy ibis; herons; spoonbills; cormorants; and many more. The majority of the colony sites are situated on privately owned land. Landholders have looked after and protected these areas since settlement.
I commend the many people in the farming community who have taken forward-thinking steps to work respectfully with the environment in that area. These farmers, who have reasonably small landholdings, have done a great job to maintain these areas for future generations. It is a credit to people such as Sue Jones and her husband and family, who have worked long and hard for generations to protect these areas. The marshes also support an extensive cattle grazing industry, which is its main economic focus. Sustainable grazing is encouraged by the marshes community, and the majority of landholders are extremely active in ensuring that the wetlands remain environmentally healthy while undertaking these practices. Interestingly, they had the slogan "Fat ducks, fat cattle". They saw the need to keep the land healthy so that they could farm as well as look after the environment.
Sue Jones is an executive member of the Macquarie Marshes Catchment Committee, which has taken on the responsibility of developing a land and water management plan for this unique area. Sue has been the driving force behind the planning process, spending considerable time consulting and working with people in the local area. Having grown up in Quambone, and with her family holding a Macquarie Marshes grazing lease from 1944 until 1990, Sue has a great knowledge of the area. She has worked and mustered cattle on many of what were released blocks, which were resumed by the National Parks and Wildlife Service in 1990, and now make up the Macquarie Marshes Nature Reserve.
Sue told us that in the Macquarie Marshes water has been diverted away for bigger and bigger irrigation business, and that the marshes are stressed and dying. She expressed concern that many people who have rung or written to her office echo the widespread concern in the bush that the New South Wales Government will change forever access to water and that it will provide a huge advantage to big irrigators at the expense of other farmers in regional towns. Of course, it goes without saying that environmental flows come last in these allocations. Another speaker at the information evening in Parliament on that Tuesday raised concern about a very marginalised community that has received little attention from the Carr Government.
Michael Eckford-Anderson, a pastoralist near Goodooga and facilitator of the Gumilaroi and Euahlayi Aboriginal nations, has a wealth of experience of native title issues on land and in regard to water. He is in fact the water rights leader for his people. He told us about how Aboriginal people see their body as part of the land, and that for Aboriginal people the water and land go together. He talked about how wetlands function like the kidneys of the land, and the rivers and streams are very much like our network of blood vessels. He speculated that a study on illnesses afflicting Aboriginal people may well have parallels with what is happening to our land.
Earlier that week I had been to a gathering of Aboriginal people at the Sydney Opera House called "Talking up River". It was a wonderful, uplifting experience. Again, at that gathering many anecdotes were offered about the importance of water and river flows to Aboriginal people. One speaker pointed out the correlation between river flow and juvenile crime rates. When there is water in the river and activities and kids are enjoying the natural environmental flows, crime in the community goes down. So there is a significant spin-off from a healthy river system for indigenous communities in terms of their wellbeing as well as the level of crime and problems faced by people in outback communities.
How clearly this articulates how little we understand the relationship traditional owners of this country have with their land. How clearly this highlights just how distant we have become from the land we took away from them. What shocked me, talking to Aboriginal people at that gathering, was that they had not heard about the changes proposed by this bill. Last week I received a delegation from Ramsay Freeman, Steven Ross, Len Joachim and Ken Stewart, of the Murray Lower Darling Rivers Indigenous Nations. I was disappointed to hear that they had been promised various things, including a high-level consultation process on this bill, and that had not materialised. They have asked me to include a number of statements, but first I would like to quote from a research discussion paper on indigenous rights to water in the Murray-Darling Basin prepared by Monica Morgan, Lisa Strelein and Jessica Weir. At page 8 it states:
Australian governments have a responsibility to recognise and protect the distinct enjoyment of such rights by Indigenous people in order to protect activities that are central to cultural survival.
Indigenous rights to fish in the Murray Darling Basin are recognised by the Commonwealth Native Title Act, and by New South Wales and Queensland state legislation. Indigenous people also have hunting and gathering rights under most national parks legislation.
Under the heading "A right to water" the booklet states:
Indigenous rights to onshore waters are part of a holistic system of land and water management. This holistic system has been fractionalised and encroached upon by European systems of land and water management, and by the accompanying environmental impact.
In order to enjoy other rights, such as fishing rights, it is first critical to have access to a healthy river system. Where water rights are to be separated from land, Indigenous peoples' interests in the access use, enjoyment of those waters should be adequately protected.
On page 36, under "Rights to water", the paper states:
Water is central to the survival of Indigenous peoples in Australia. Indigenous peoples' survival depended upon knowledge of both the episodic and seasonal behaviour of creeks and rivers, reliable water holes, and the availability of swamps, springs and soaks. Careful management of natural resources of the Murray meant that food would be available for important gatherings of thousands of people held over several days.
The right to use and to take water is an essential part of the historical and contemporary lives of Indigenous Nations. Today, water continues to be central to the survival of Indigenous people in Australia. As stated earlier in this discussion paper, the River Murray is central to cultural, spiritual, social, and economic sustainability and identities of the Indigenous Nations.
The right of Indigenous peoples to use and take water has been recognised in various native title determinations. The Mattu and the Ngurrara Peoples' determination, for example, recognized the right to "take, use and enjoy the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs, including the right to hunt on and gather and fish from the flowing and subterranean waters."
The difficult task of determining how best to manage the scarce water resources of the Murray River cannot side-step the inherent rights of Indigenous Nations to the use, access, enjoyment and economic utility of the water of the Murray.
On page 41, under "Preserving the cultural economy", it states:
In order to enjoy rights such as fishing rights, or more general cultural and economic rights central to the maintenance of Indigenous Nations cultural traditions, it is first critical to have a healthy river system. The degradation of the river system has threatened these pendant rights.
The Indigenous Nations of the Murray have identified the interrelationship between these elements as the need to preserve the cultural economy through the identification of cultural flows. That is, sufficient environmental, social and economic water flows and volumes must be allocated to the River and to Indigenous Nations to sustain the cultural economy of each Nation in the River system.
These indigenous organisations have at best been ignored and at worst horribly deceived in relation to the water legislation before the House. In a statement to my office Mr Steve Ross, the co-ordinator of the Murray Lower Darling Rivers Indigenous Nations, stated:
Perpetual Disadvantage
The Murray Lower Darling Rivers Indigenous Nations (MLDRIN), a confederation of Indigenous Nations throughout the Lower Murray Darling Basin, are outraged by the Carr Government's proposed Bill to privatise water. MLDRIN is extremely concerned by the:
• Lack of negotiation and informed consent with the Nations;
• Repercussions of "future Act" established through the granting of perpetual water licenses on Native Title claims in NSW and claims to water;
• Omission in the legislation of the inherent rights of the Nations to water;
• Granting of licenses to Aboriginal interested parties after the granting of perpetual licenses is offensive;
• lack of time for response from the Nations; and
• Questionable adherence and commitments to the MoU signed between MLDRIN and DIPNR.
The Nations are not satisfied with the proposal to include our interests in the regulations. This is not strong enough and leaves our interests vulnerable to the whims of government and politics.
MLDRIN are examining legal avenues if the legislation is enacted without proper consideration and inclusion of Indigenous Nations.
I believe that under native title legislation these people have a very just cause through the courts, because this is effectively racist legislation. The statement continues:
Once again the traditional owners have been locked out of all decision making processes. Our inherent cultural and spiritual rights to our land and waters have been overlooked.
The proposal to change the NSW Water Act 2000 undermines our Nations' rights and interests to secure cultural and environmental water flows. The impact on our land and waters will be devastating: to our environment, our culture, our spirituality, our dreaming stories and the social economy of our peoples.
The NSW Government and MLDRIN signed off on an MoU in 2000. This MoU was developed in good faith by MLDRIN, but it appears that the NSW Government has deliberately sidetracked the MoU and the Native Title Act of Australia.
You can be assured that MLDRIN will never lie down. We will stand together, firm in our beliefs and ideals that our … rights and interests are equal.
Our Indigenous Nations will not accept genocidal policies or Acts of any Government.
That was the statement from Steven Ross of the Murray Lower Darling Rivers Indigenous Nations. I have also had representations from the New South Wales Native Title Services and the New South Wales Aboriginal Land Council. Because the Government has so comprehensively failed to consider indigenous issues in this bill, it is reminiscent of the way the same Minister completely ignored our concerns during the Native Vegetation Bill process. I will read some of the points they make so they will appear in the public record. A briefing note from the New South Wales Aboriginal Land Council on the Aboriginal interests in the Water Management Amendment Bill states:
Introduction
The Water Management (Amendment) Bill 2004 creates a new system for conferring and managing private property rights in water. It is ironic that the Bill was read in the Legislative Assembly immediately after the Government's motion regarding Reconciliation Week and yet the Bill contains no reference to Aboriginal people or their rights and interests in relation to water.
These rights and interests are considerable. Rivers are not just of economic importance to Aboriginal people, they are also of spiritual and cultural significance. The importance of rivers to Aboriginal people is recognized, at least in part, in the Water Management Act 2000 (WMA). However, it remains a fact that those who did not have water access licenses prior to the WMA are unlikely to obtain them under the new system unless they are able to pay market rates for them. Under the previous system water licenses were tied to land ownership. The new system translates Aboriginal dispossession in relation to land into dispossession in relation to water.
The CSIRO report Value of Returns to Land and Water and Costs of Degradation states that while only 1% of Australia is irrigated, this 1% produces around 50% of agricultural income. This emphasises the importance of dealing with rights to water in conjunction with land rights. The failure to ensure that there are adequate rights to water will compound the consequences of the dispossession of Aboriginal people from their lands and increase the economic disparity between black and white Australia.
Seven Steps Towards Water Equity for the Aboriginal People of NSW
The NSW Aboriginal Land Council and NSW Native Title Services have developed seven steps that would assist in securing more favourable outcomes for Aboriginal people in relation to water rights.
1. A commitment from the NSW Government to enter into Indigenous Land Use Agreements (ILUAs) before perpetual licenses are granted;
2. Protection for Environmental flows;
3. A commitment from the Government not to extend the term of a Water Sharing Plan unless Aboriginal rights and interests have been adequately addressed as required by the Water Management Act 2000. There should be an audit of the Water Sharing Plans to, assess the adequacy of each plan;
4. Standards and targets should be implemented under the Natural Resource Commission Act 2003 that reflect the obligations to Aboriginal interests under various pieces of legislation including the Water Management Act 2000;
5. A broad basis for Aboriginal cultural and economic access licenses and a commitment that these will not just be tokenistic;
6. The Aboriginal Water Trust to commence operation as a matter of urgency and to be permanent;
7. Increased allocation to the Aboriginal Water Trust with a fixed and stable source of funds. Options for this include:
(i) Allocation of the stamp duty received from the sale of water licences; and
(ii) Representations to COAG by the NSW Government for a Commonwealth contribution to the Aboriginal Water Trust.
The Amendments
The amendments before Parliament this session provide for, amongst other things, the creation of perpetual licenses and the extension of Water Sharing Plans.
Perpetual Licences—Schedule 4 of the Bill
Converting limited term water access licences to perpetual licences will increase the State's financial liability to pay compensation to native title holders whose interests have been adversely affected by the allocation of water. The compensation payable could be considerable given the perpetual nature of the adverse interests. NSW Native Title Services Ltd has received legal advice to this effect. A copy of this advice was provided to the Minister for Aboriginal Affairs in March. To date there has been no response from the NSW Government to the matters raised in that advice.
Native Title Services has been in contact with some Aboriginal communities who say that the allocation of water for irrigation has had a negative impact on their ability to fish and undertake other cultural practices. The issue of licences in perpetuity will significantly reduce the State's ability to address these negative impacts over time. Perpetual licences amount to perpetual losses for the Aboriginal people whose rights they affect.
Perpetual licences should not be issued without an Indigenous Land Use Agreement permitting them. This is the only way that the State can issue such licences with any certainty about the consequences.
Extension of Water Sharing Plans —Schedule 1 Clause 16 (proposed s.43A)
The NSW Aboriginal Land Council and NSW Native Title Services have raised a series of concerns over the past year about the operation of the Water Sharing Plans. These were also raised in a recent report to the Healthy Rivers Commission.
The plans do not adequately apply the principles contained in the Water Management Act 2000 and State Water Outcomes Plan in regard to Aboriginal rights and interests. The extension of these plans beyond their original term simply serves to entrench their failings.
The NSWALC and NTS want the State Government to conduct an audit of the Water Sharing Plans to determine the extent and quality of Aboriginal participation in preparing the plans and the extent to which the plans facilitate relevant Targets in the State Water Management Outcomes Plan.
Environmental Flows
NSWALC and NTS remain concerned about the proposed changes to environmental flows. In view of the absence of specific water allocations for cultural flows, the main protection for Aboriginal rights and interests occurs by virtue of the protection of environmental flows. NSWALC and NTS therefore seek the assurance of the Government that these flows will be protected and enhanced.
The COAG needs to investigate and include QLD water flows and subterranean water allocations for cultural protection.
A cultural flow includes things that are beyond an environmental flow and the two things are not the same.
Other issues
Standards and Targets
The standards and targets being developed under the Natural Resource Commission Act 2003 do not provide any mechanism for assessing the performance of the Catchment Management Authorities in respect of their obligations to Aboriginal people. This is a serious deficiency, given that the Catchment Management Authorities will have significant responsibilities under the Water Management Act 2000 including the development of Water Sharing Plans.
Separate standards and targets need to be implemented that relate to Aboriginal interests. Draft Standards and Targets that relate to Aboriginal interests have been developed by a departmental working group. These need to be given the same status as the Standards and Targets relating to biodiversity, salinity, soil degradation and water quality.
The Aboriginal Water Trust
The NSW government is in the process of establishing an Aboriginal Water Trust. Cabinet approval for the creation of the Trust was given on 16 September 2002. The Trust will have funds of $5 million and operate over two years. It has not yet commenced operation. While the Government has advised NSWALC and NTS that it will carry over the funds allocated to the Trust, there is no guarantee that it will do so. The report to the Healthy Rivers Commission on Aboriginal rights and interests in rivers makes the following recommendations with respect to the Trust:
1. It is essential that the water trust not be seen as an alternative to the proper observance of statutory obligations to develop and implement strategic plans to advance the objects of the WMA and the Outcomes Plan.
2. The $5 million dollars allocated is insufficient to adequately remedy the inequitable distribution of water resources in the state and the state Government should look at means for an on-going contribution to the fund
3. Any funds for the administration of the trust should be additional to, and not paid out of the trust itself
4. There needs to be flexibility in the manner in which the trust is utilised and it should be capable of allowing the purchasing and leasing of water entitlements on the open market.
NSWALC and NTS suggest that the Government use the revenue raised from stamp duty on the purchase of water licenses to provide additional funds to the Trust. The translation of existing water licenses into perpetual licenses will increase their value. Increases in the stamp duty received by the Government as a result of this represent a windfall. All stamp duty received on the transfer of water licenses should be allocated to the Aboriginal people of NSW through the Trust. This is consistent with the compensation principles, contained in the Aboriginal Land Rights Act, 1983 and would establish a permanent mechanism to assist in compensating Aboriginal people for the impact of the licenses upon their water rights.
NSWALC and NTS have already made detailed submissions to the Chief Executive Officers Group in relation to the National Water Initiative Discussion Paper. As we are not confident that Aboriginal rights and interests in water are being properly recognised yet we are writing to both Commonwealth and NSW Governments to ensure that Aboriginal concerns about water receive national attention through the COAG process.
NSWALC and NTS are asking that a proportion of fiends from the $500m that accompany the initiative to address water overallocation in the Murray Darling Basin should be earmarked to address Aboriginal rights to water. Some of those funds could be used to purchase water licenses for Aboriginal communities and should be used to support Aboriginal representation and participation in the provision of advice to the decision making bodies who will make determinations on the allocation of water in the future.
NSWALC and NTS will be asking that COAG agrees that Aboriginal interests and rights to water must be protected and that government agencies be asked to report back to COAG ministers on how this is being achieved. NSW should support this position in COAG.
I felt obligated to put on the record in detail the position of the Aboriginal community representatives because, as much as it may be mocked in this House—
The Hon. Rick Colless: Did you talk to the Aborigines in Moree?
Mr IAN COHEN: Yes, I did. Mr Anderson, the Gamilroi representative, is from the Moree area.
The Hon. Rick Colless: Did you talk to Dick Estens?
Mr IAN COHEN: I do not have that name on my list. I have been consulting a number of Aboriginal representatives. It is important to place this information on the record because there has been an exceptional lack of communication by government agencies with these communities and representatives. They have all told me that they are very concerned about the lack of communication by this Government and this attack on their basic rights. The Government and members of this House would do well to look at their concerns.
The New South Wales Government is also hiding behind its war of words with Queensland over water rights to divert attention away from its role in destroying internationally listed wetlands on the Gwydir River and Gingham Channel west of Moree. Howard Blackburn from Crinolyn, one of four landowners who signed the first ever memorandum of understanding [MOU] with the New South Wales and Federal governments in 1999 to protect the lower Gwydir and Gingham wetlands under the Ramsar Convention, has heard enough rhetoric about water management and hollow promises from Mr Knowles. Symbolically, the landholders signed the MOU with the State and Federal governments in Moree on World Wetlands Day in 1999.
Surely the Australian governments, individually and as the Council of Australian Governments, are capable of greater co-operation in the protection of Ramsar wetlands than the Iraqi, Syrian, Turkish and Iranian governments, which are jointly responsible for the denial of water to the Mesopotamian wetlands. However, it would seem that they are not. Howard Blackburn wrote to me in March this year and stated that the past five years have produced nothing but a string of broken promises and disaster for the wetlands. He has decided to pull out of the Ramsar listing because State and Federal government agencies have failed to live up to their end of the bargain and release enough water from Copeton Dam to keep the wetlands healthy. He sent another letter dated 17 June in which he states:
Water Management Problems In Northern New South Wales
1. N.S.W. State Government at this trying to blame Q.L.D. for its water shortage problems. Bob Carr thinks water from Q.L.D. flows to Macquarie Marshes. Craig Knowles thinks Gwydir Wetlands are only affected by current natural drought.
Such statements are a true indication of how out of touch with reality these people are.
2. Gwydir River used to be a terminal river within its own valley, ending in a huge ephemeral wetland west of Moree.
It flowed into the Barwon only in flood times and high rainfall periods.
These huge wetlands west of Moree were known as the Gingham and Lower Gwydir watercourse and were renowned for their cattle producing ability as well as abundant wildlife.
With the advent of river regulation and irrigation industry the water that once flowed into this special and unique area has been diverted to irrigation and the Carole Creek and Mehi River were modified to allow water to flow freely into the Barwon River.
Now, despite agreements and plans to the contrary water is being diverted into the Barwon from low level Gwydir River flows and irrigation is being allowed access to all other controllable Gwydir River flows. This has caused a man made drought of ever increasing severity for many years in the Gingham and Lower Gwydir wetlands.
Stock carrying capacity of the area has been drastically reduced as well as wildlife numbers. The aquatic type grasses such as water couch have been replaced by a weed from hell called lippia.
In short the current water management of the Gwydir River is a disaster for the Ramsar listed Gingham and Lower Gwydir wetlands.
What can be done to improve and or enhance this once magnificent area? The answer is simple. Re-instate some natural low level river flows to the area. Just add water. A very simple recipe.
3. Current water managers are not abiding by rules and water sharing arrangements, preferring to supply irrigation and Barwon River flows rather than supply desperately needed water to wetlands in Gwydir Valley.
4. It is a similar situation in the Macquarie Valley where the Macquarie Marshes are suffering a severe long term, man made drought.
5. The control the irrigation industry has over the water management operators is a major concern in northern N.S.W. and Q.L.D. it is a clear case of the "regulated regulating the regulator".
This is not a recent problem, as the Premier and Minister Knowles would have us believe, but a systematic denial of environmental flows over a number of years in favour of big irrigation businesses. The wetlands are now a degraded form of their previously healthy state. Like other landholders in the wetlands, Howard Blackburn signed the MOU in good faith and believed that Ramsar listing would help bring about a fairer distribution of much-needed water for the wetlands. That has not happened. Mr Blackburn believes, as does Sue Jones of Macquarie Marshes, that the Carr Government's proposed perpetual water licence system will only entrench a property right that the irrigation industry already abuses.
In a good year, when there is water available for all, irrigators get more than 500,000 megalitres of water from Copeton Dam alone, while the Gwydir Wetlands get only 10,000 megalitres from an allocation for stock and domestic users. That may be great for big irrigation business, but the Carr Government has not stopped to think about what is happening to the people who live in this area. The Blackburns have had to get rid of three-quarters of their stock because there is not enough water and the wetlands have suffered significantly. The native grasses in the wetlands have all but disappeared and the weed lippia is taking over. Even semi-regular flooding would help stop this decline, but Mr Blackburn fears that the damage is done. Despite Minister Knowles' assurances that his scheme is good for the bush, Mr Blackburn has called on the Government to increase environmental flows through water-sharing plans to be introduced in July. Peter and Fiona Howe run about 3,000 Border Leicester sheep on their stud "Dunnield" near Trangie. Mr Howe wrote to Minister Knowles in February this year stating:
Your department has failed to protect the basic right to access clean, fresh drinking water for my family, my farm and the future generation. In doing so, you have made this farm extremely difficult to hand over to my son, who would be the fifth generation on this property.
Mr Howe has been writing to Minister Knowles since May 2003 requesting a meeting to discuss water quality problems occurring across the Trangie district due to a significant drop in underground water supplies that many in the district access through bores. Mr Howe's request for a meeting has been all but ignored by the Minister. He is President of the Stock and Domestic Bore Users Group in Trangie. His group has been trying to raise the alarm about a loss of underground water supplies and quality since November 2002. At that time, 19 families in the district were directly affected by irrigation extraction and declining water quality in their bores. In February this year that number had grown to 40 families. At the same time, Narromine Shire Council was raising concerns about similar declines in town water supplies and water quality. That number now exceeds 65 families in the district.
Mr Howe and many other people in the Trangie district have been pleading for action to curtail the rates of extraction from underground water supplies by the irrigation industry for almost two years now. They have been ignored or their evidence has been simply dismissed. What the Minister and the Department of Natural Resources continue to ignore is evidence that the electrical conductivity of water in bores across the Trangie district has risen alarmingly in the past few years. Mr Howe's bore registered 900 electrical conductivity, which equates to a salinity level in his water supply of about 500 parts per million. When Mr Howe wrote to Minister Knowles in February this year, the electrical conductivity level on his water supply had risen to 5,700, which equates to a salinity level of more than 3,500 parts per million. At that level, Mr Howe's water would not allow vegetables or fruit to grow, chickens and pigs would not drink it and dairy cattle would struggle to get through it. In 12 months, Mr Howe's water supply will be undrinkable. It will be good enough only to maintain condition in his sheep. In early February Lindy Crowther, from Narromine, wrote to Minister Knowles as follows:
During the last four months, the water level in my well has dropped 10 metres, necessitating the lowering of my pump four times.
I cannot imagine what it would be like to live on the land, which involves relying on the water supply, and face such drastic reductions in bore water levels. Lindy Crowther continued:
Last week, two of my children have been diagnosed with gastro-enteritis and the doctor is of the opinion that it has been caused by the deterioration in the water quality. I have had to start buying in water suitable to drink and I am awfully afraid my children will not recover.
The message to Minister Knowles in all the horror stories I have referred to is clear: the level of water extraction by irrigators, either from rivers or aquifers, is unsustainable. The unsustainable growth in the New South Wales irrigation industry is occurring at the expense of families, small family farms, the environment, water quality and indigenous rights. What has been the Minister's response to the information from Peter Howe, Lindy Crowther and others about the problems with overextraction of groundwater? An article in the 31 May edition of the Western Magazine under the headline "Water allocations announced" reads:
The water allocations for the Lower Lachlan Groundwater Management Area have been announced for the next financial year.
The Infrastructure, Planning and Natural Resources department (DIPNR) regional director, Don Martin, said water access would be available based largely on historical use.
"Due to what is possibly the worst drought on record, with zero surface water allocations, an agreement has been reached to maintain total extractions close to historical levels for the 2004/05 year," he said.
This will minimise the economic and social impacts for the Lower Lachlan users during this continued drought.
"Water users and DIPNR both acknowledge that extraction may exceed sustainable levels and that this is an emergency plan only for 2004/05," Mr Martin said.
So the response to record drought is to maintain water extraction at levels that both the department and irrigators acknowledge are unsustainable! That is incredible! We are asked to have confidence that the Minister and his department are looking after the interests of the environment. Members may be aware that when an aquifer collapses it never recovers. We are not just abusing the people in communities like Narromine and Trangie; we are potentially destroying the viability of those areas as capable of supporting human habitation into the future. There is little doubt that serious damage has already been done, but all is not lost. The Government has a chance to leave a legacy for the future, think for the future and act to increase the amount of water the environment receives so that the rivers stay healthy, wetlands survive, and water quality is maintained and improved. The Government has the chance to amend this legislation and use its water-sharing plans to increase environmental flows so that this legacy is possible.
I now wish to address some of the points raised by Minister Knowles when he introduced the bill in the other place. The Minister feigned some sort of concern and awareness about the environmental problems faced by our river systems and the ecosystems that depend on them. Unlike the Premier, who has at least some environmental credentials, Minister Knowles is not convincing anyone. He is certainly no longer convincing me. The Minister said it has become clear that the way in which we are using these natural systems cannot be sustained, and that we have an obligation to ensure that the water resource is used sustainably. Does the bill match this rhetoric? No, it does not even go close.
Eighteen months ago a number of water-sharing plans were gazetted that covered particularly the mainland river systems as well as several on the coast. These water-sharing plans had not been drafted by stakeholder committees that had reached consensus on the water-sharing arrangements; they were what is known as "Minister's plans". A number of water management committees had been established to draft water-management plans, but the Department of Land and Water Conservation—as it was then known—quickly thwarted any attempt by those committees to deal with water quality or water management, and directed the committees to only discuss bulk access water entitlements. Committee members were told that they would get a chance to address water quality issues, but that first they needed to prepare water-sharing plans. Most of those committees have now been discarded, leaving many participants with a bitter taste in their mouths.
I received a letter signed by a number of people who participated in water management committees in good faith. I know quite a number of these people, who have a significant amount of expertise in this area. They include former local members of Parliament, conservationists and people from various communities. The letter is signed by Leonie Blain, from the upper North Coast; Gabrielle Tindall, from the mid North Coast; Terry Parkhouse, from the mid North Coast; Joy van Son, from the mid North Coast; Greg Gill, from the lower North Coast; Gregory Hall, from the lower North Coast; Jim Morrison, from the Border Rivers area; Duncan Dey, from the Northern Rivers area; Bev Smiles, from Hunter and Macquarie Cudgegong; and Garry Germon, from the mid-North Coast. It reads:
I accepted appointment to the Water Management Committee on the initial Terms of Reference, that included broad objectives to plan for, and implement far-reaching improvement of the catchment health. Quite soon after appointment, our Terms of Reference were radically changed to reduce the task of the group to that of setting the water sharing rules only. The inability to deal with water quality issues undermined the effectiveness of the process. The report by the Auditor-General highlighted the failure of the Department of Land and Water Conservation in this regard. All other functions were relegated to other groups, since defunct, or increasingly, retained by the then Department of Land and Water Conservation.
We achieved a ready consensus on the adoption of the river flow and water quality objectives, as these had been the subject of a genuine round of community consultation conducted several years before by the EPA and the need for them was well understood.
The DLWC hosted the committee, and exerted an undue and improper influence on its deliberations. This influence included the presentation of incomplete and biased information, of repeatedly re-presenting issues until the current department view had prevailed. This view was subject to change throughout the life of the committee, at the whim of unseen higher powers.
On at least one committee, an extra representative of the irrigators lobby was appointed by the Minister, wrecking any chance of reaching consensus.
Our attempts to present research material and data not to the liking of the DLWC were variously met with studied avoidance to strenuous dismissal.
The term of the plan that we were asked to draft was abruptly increased to ten years, although the paucity of information on which to base any plan was well recognised by all community members of the committee and protested at the time.
Even the information on river flow rates and actual use by irrigators was scanty at best, and proved to be erroneous on several occasions. It became clear during the term of the Committee that the DLWC had little real appreciation of the way the water users actually used the resource.
The department was unable or unwilling to put before the Committee any meaningful information on the real requirements of the aquatic and riverine eco-systems, nor of their ability to endure the artificial, extended drought conditions that the water sharing rules would impose on the river. Their IQQM modelling system was limited to simply showing likely flow rates and effects on water users, it could tell us nothing about the life and health of the river itself.
That model was used by the department staff to convince the Committee that the initial River Flow Objectives were untenable to the irrigators, and must be weakened. This was agreed to only on the promise that effective 5 year and 10 year review clauses would be included, and that the reviews would be well informed by scientific studies to be commissioned.
The whole committee could easily agree on the need for review of the provisions of the water sharing plan at the five year period, should the scant information on which the provisions of the plan were based, prove to be deficient.
We were repeatedly assured that the poor state of knowledge would be remedied by active investigations during the term of the plan, such that future committees would be much better informed to re-make the plans in future.
Nevertheless, on the basis of this scanty information, and increasingly hollow promises by department staff, we drew up the plans in good faith. It now appears that our work is to be cynically used by Government to grant another boon to the irrigators in the form of perpetual access to the very lifeblood of our eco-system.
That our commitment and effort is to be so abused leaves a bitter taste.
I know most of the people who signed that letter. Under any circumstances, I have absolute faith in their ability to conduct assessments and mapping of these projects. Time and again the scientific information of people in the community—people that I know, people with expertise and integrity—has been put before government agencies. There is a recurring problem: we are dealing with bureaucracies dictated to by the Minister, bureaucracies that are glaringly deficient in their expertise and fairness when they are doing these sorts of assessments.
The Hon. Rick Colless: What happens when the scientific information does not back up your preferred range of options?
Mr IAN COHEN: The honourable member asks the rhetorical question: What if the scientific information does not back up the options? I know these people. They are there purely for their dedication, to see that we have balance in the system. They are not there to make money; they are there to achieve long-lasting results that can stretch across generations. It is quite evident to me that time and again they have presented the scientific proof and they have been ignored by this Government, particularly this Minister. In the end, the water-sharing plans reflected what the department wanted—certainly not what the people wanted or what the water management committees wanted. It seems that, once completed, the department did what it wanted anyway. An eloquent example of the frustration of a water user is a letter from Patrice Newell, which is published in her book The River about the Pages River. I quote from a letter in that book:
Dear Sir
After four years as secretary of the Water-Users Association, I resign. During this past week, as residents of Gundy struggle to get water, the department has proved incapable of implementing a fair and equitable use of irrigation water. Having accepted the conversion of licences to volumetric, having tried to understand the draft principles, having accepted that 0.5 megalitres is the cease-to-pump level, having acknowledged that the residents of Gundy were to have a priority, having conceded that pools aren't to be pumped out (that to argue 'my waterhole is still okay' doesn't hold water), that when the Isis stops flowing into the Pages, that's more than enough, having heard everyone make promises they now refuse to keep, the DLWC sees fit to allow one section, one fraction of the association to irrigate, and not another.
What conclusion are we to draw from this? Are we seeing incompetence or corruption? Cowardice or stupidity? Whatever the reason for this dereliction of duty, this abdication from a principle, this back-tracking from negotiated agreements, the department should be ashamed of itself.
But I don't send it. Why bother? Clearly, nobody gives a stuff.
It seems that, still, nobody gives a stuff that this was done by the same department responsible for handing out water licences, without thinking about how many may be sustainable. It is the same department that failed to put in place adequate metering to determine some baseline information that could have assisted us all now. Again, I quote from Patrice Newell's book:
The DLWC suggests that irrigation licences on the Pages and Isis be traded downstream. This way, less water upstream will be extracted and, hopefully, more water will flow into the Segenhoe aquifer.
Sadly, most of the licences traded over the past two years have gone in the wrong direction. The shifts in water are notified in the local paper and written objections are invited. When I phone to query the situation, I'm told that, despite the philosophy of wanting to move water extraction downstream, it is true that, yes, licences are moving up. If that's what money wants, that's what money gets. Money not only talks; clearly, it has the last word.
'Yes, madam, you can complain about where water trading is heading, but my organisation is only interested in how an application might affect your business - directly.' Otherwise shut up.
Another issue that's raised at many a meeting and written about in much of the official literature is that some soil types are absolutely and utterly unsuited to irrigation. To pour precious water onto such acreage is an outrageous waste of a resource. Even if it means that, in the future, marginal land with dead soils will be watered extensively and expensively, leaving good, agricultural acreage downstream dying of thirst, so be it. If you can afford to buy the licence, the equipment, and pay the labour you can irrigate anything anywhere any time.
With irrigation destined to increase, how will Segenhoe Valley ever be able to recharge its massive aquifer? Since it depends on the ravaged river system, it is incomprehensible that the aquifer could be 'five times overallocated' with licences in the first place. So I asked Garry from the DLWC if he's sure about the numbers.
'We know the rainfall figures for the past 100 years and we theoretically know the infiltration rates of the soils around Segenhoe. By modelling we can work out that the long-term recharge of water into the aquifer is about 1000 megalitres per year.'
Yet the DLWC has issued licences that add up to 5000 megalitres.
There are many questions that don't seem to have answers. Are all the soils the same? Where are the underground paths to and from the river? Does it connect to nearby aquifers? Is it connected to Lake Glenbawn? Because of these 'unknowns', as they're categorised, there won't be a reduction or 'claw back' of licences. On top of this overallocation anyone in Segenhoe can buy surface-water licences from upstream and take more water, which is meant to be recharging the aquifer, from the river. The 'unknowns' are what everyone who despises any attempt at water reform uses to justify their continuing irresponsibility.
Many of our unregulated rivers still have no reliable flow monitoring equipment. The water sharing plans for those rivers are no more than a best guess. The Minister also claimed:
In the period 1995-1999, we commenced the process of returning much needed water to the environment by establishing environmental objectives and minimum environmental flows.
The Minister is confused. He mistakes a process, or a framework, for an actuality. One of the great disappointments out of this water reform process in New South Wales is that it has failed categorically to deliver environmental flows to New South Wales rivers. In fact, this entire water reform process is best characterised by the catchcry "Rhetoric triumphs over reality". Driving the water reform process is the national competition policy being pursued through the Council of Australian Governments [COAG]. About a decade ago COAG agreed to tackle this problem of water. This was an understandable approach to take, because water issues affect everyone and they certainly cross State boundaries. The national water initiative came out of that process. It is still under discussion.
It is hard for many of us to fathom why the New South Wales Labor Government is holding out a lifesaver to the Federal Leader of The Nationals, John Anderson. With these proposed changes to the Water Management Act, the Carr Government is pre-empting the next round of COAG discussions on water scheduled for July. We are left wondering what the real deal is and whether we can expect to see even less water for the environment in the long-suffering Namoi and Gwydir rivers, as both the New South Wales Government and the Federal Coalition Government seek to appease irrigators in Mr Anderson's electorate. The Minister intends to turn on the water-sharing plans on 1 July, except for six seriously overallocated groundwater systems.
These plans entrench a steady decline in river health; they do not provide for the environmental flows necessary to ensure that our rivers and aquifers remain healthy. In fact, one of the reasons the Minister seeks to combine the two categories of environmental health water under the current Act is that in most of the water-sharing plans there is no environmental health water set aside to maintain even the basic functions of an ecosystem. Only some supplementary environmental water is to be left for environmental purposes if and after irrigators have received their allocation.
The so-called definition of "environmental water" is a good example of how the Carr Government has approached natural resource management in New South Wales—rhetoric wins over reality yet again. The definition of "fundamental ecosystem health water" was problematic because apparently no-one within the New South Wales Government knew what it meant and, from recent history, I am not surprised. I am equally not surprised that the New South Wales Government has maintained the supposedly problematic term in its so-called improvement "planned environmental water".
The only difference is that "planned environmental water" will also include "supplementary environmental water"—apparently the only water that the New South Wales Government could find for the natural environment during the entire water-sharing plan process. The tricky thing is that one can trade supplementary environmental water to other water users. Therefore, the real difference that the New South Wales Government is getting from this change in definition is the capacity to trade all planned environmental water whenever it likes, as long as it is not limited within the water-sharing plan itself. Perhaps in his reply to the second reading debate the Minister can inform the House how much environmental water in the major water system plans—which will come into effect on 1 July—will not be available for trade. I do not expect a quick reply—or even a reply—from the Minister. It will probably be a perfunctory end to debate typical of how Parliament superficially looks at issues of vital importance to many sections of the community in our dry inland areas.
With our current sad and sorry water sharing plans, most of the water committed for environmental purposes is supplementary and is therefore delivered subject to the security levels of other water users. Environmental water in the New South Wales water-sharing plans is not the amount of water required to keep a healthy working river; it is the amount of water left after one maintains the mythical amounts in the overallocation and allocates an equally hypothetical amount of water as supplementary environmental water, which will now have the lofty title of "planned environmental water". The only thing "planned" about this environmental water is that it will have been planned to fail. Once again, the Carr Government delivers a triumph for rhetoric over reality.
In regard to perpetual licences, the New South Wales Greens do not oppose more certainty for holders of water access licences. However, we oppose granting access licences in perpetuity to people when it is nothing more than a rort. This is another major victory for Carr's little rhetoric soldiers—the front-line soldiers against reality. Minister Knowles proudly pointed out in his second reading speech:
What the water user gets is a perpetual share of the available water, not a guaranteed volume of water. The actual volume that a water user receives will vary depending on the amount of water in the water resource, as affected by climate; and the pool of water available for extraction, as determined by the Minister from time to time, according to the rules of the water sharing plan.
New section 45 (1) (a) gives the Minister power to adjust water management plans if he is satisfied that it is in the public interest to do so. The New South Wales Greens support this power being maintained in the legislation, as it is quite clear that the New South Wales Government will need to adjust the current water management plans within the 10-year life of the plans. None of the plans allocates sufficient water to maintaining environmental health and, as a consequence, it is inevitable that they will need to be amended, not just for the environment but to protect town water drinking supplies and riparian users who want to water stock. If the plans change, the rules change. The New South Wales Government is being very coy about how much certainty it delivers to water access licence holders.
This bill does not deliver more certainty for water access licence holders. It delivers much more certainty and security for third-party interests, such as banks. The Greens believe that there will be no actual certainty for New South Wales access licence holders or buyers of access licences until two things occur: first, adjustments to eliminate overallocation and, second, the amount of water required to keep a healthy working river has been articulated and protected by relevant rules. There will be no certainty for access shareholders, despite this legislation, until overallocation has been removed from the system, and adequate metering and monitoring of water delivery has been implemented. The New South Wales Greens do not support the granting of perpetual licences to water access licence holders, not simply because we think it is an unacceptable level of privatisation of a public resource but because this perpetual licence does not actually deliver certainty to access licence holders. The only thing perpetual about water management in New South Wales is the level of overallocation, the massive mismanagement of our most precious resource: water.
The Greens and other crossbench members will move a number of amendments in Committee to address some of the gaping holes in the Government's proposal. We propose that we begin to immediately return to health rivers that are classified as stressed or at risk. To do so, we propose that 1 per cent of the allocation—the long-term average extraction limit—be returned each year as environmental flow until the river is no longer classified as stressed.
The Hon. Rick Colless: How many years?
Mr IAN COHEN: I think we would be looking at that increase over a 10-year period, but essentially it would be until there is a proper assessment and the river is no longer classified as stressed or at risk. If we reach the point where there is a balance in the environment, we can look at that. The Hon. Rick Colless may disagree with the condition of the rivers, but it is well established that all the rivers are seriously stressed and that an increase of 1 per cent each year should be maintained until we reach an environmental balance and they are no longer classified as stressed or at risk. I do not believe that is too much to ask. It is a just and equitable solution, which requires no compensation. No-one gets security from a dying environment and no government has the right to give away water that is needed to maintain healthy ecosystems, healthy landscapes and healthy communities.
The Hon. Rick Colless: Who will pay?
Mr IAN COHEN: I suggest that the environment, indigenous communities and people living in these areas already pay. In the future they will pay a great price for ignoring the realities with respect to the health of these ecosystems. I am pleased to see the Hon. Henry Tsang giving advice to the Hon. Rick Colless in relation to water allocation. I am sure his depth of knowledge will result in a scintillating reply to the matters I have raised today. I wonder whether the Government has some deep and meaningful understanding of the problems. I doubt it. The Government proposes to allow plans, which were designed only for a life of 10 years at most, to be extended on the recommendation of the Natural Resources Commission [NRC]. We want to ensure that the NRC assesses the plans against similar criteria to the previous review—that is, we want to ensure that the plans are adequate and appropriate for ensuring effective implementation of the objects and water management principles of the Water Management Act.
We believe that the Government's review proposal is nebulous and could lead to the plans being assessed against standards and targets not necessarily related to water flows. Furthermore, there is no requirement for the NRC to issue a draft report for public consultation and a final report before the Minister makes a decision. That is hardly the transparency that the Minister promised in his recent ministerial statement on the matter. Given the parlous record of Ministers responsible for this portfolio, it is vital that any decision to extend a plan is not done without the concurrence of the Minister for the Environment and that any plan extension reactivates the judicial review. We will attempt to increase accountability and transparency with respect to the Minister's plans to ensure that the Minister cannot issue more access licences for a water source classified as stressed or at risk, and to halt the interstate transfer of water.
Another series of amendments addresses water approvals. New applications or extensions of existing approvals must be assessed, where relevant, against part 5 of the Environmental Planning and Assessment Act 1979 and should not be issued or extended if they are likely to cause material harm to the environment. Finally, I wish to state how deeply disappointed the Greens are with the New South Wales Australian Labor Party, which has chosen to rush in ahead of the outcomes of the national water initiative and attempt to set a poor precedent that the other States would find easy to simply fall in behind. "Property rights" has been the catchcry of many farmers for more than a decade. However, behind the farmers stand the banks. I say this to the members of this House and in the other place: Before you switch off from this debate about our environment I ask you to listen and hear that a monopoly over water in this State is on the way.
Not long ago I received a call from landholders who had applied for a bank loan in order to purchase a flat in town. They were told that they could not get the loan until they had a permanent water licence. Remember the promises of the Minister for Natural Resources that these changes would provide secure entitlements to the resource, which can be used as collateral for short-term and long-term investment. Now consider the plight of my caller. This is not a move to create investment in water saving technology; it is clear that banks see water licences as more valuable than land and have been pressuring farmers to pressure the politicians for perpetual licences so that they can take out loans to purchase a flat.
Recently the Victorian Government unveiled a blueprint called "Our Water Our Future". It proposes to give legal water rights for the environment as well as to direct 20 per cent of current water allocations back to the rivers. Contrast this with the situation in New South Wales, which is giving water rights to irrigators and redirecting a measly 3 per cent of allocations back to the rivers. I get the feeling that no-one is listening to me at the moment, and that is a shame. It is a glaring misjudgement on the part of the New South Wales Government. Today the Australian Conservation Foundation, the National Farmers Federation and the Australian Bankers Association produced a joint statement outlining six principles that should be addressed before there is any commitment to a national water initiative [NWI] at the Council of Australian Governments meeting in Canberra this Friday.
The first principle is for governments to identify overallocation and river health status. Following this, within 10 years governments should address the overallocation and restore Australia's rivers to a healthy working condition. What is New South Wales doing? What do we take to the table? Twelve months ago Minister Knowles announced the deferral of the water-sharing plans so that New South Wales could respond to the national water initiative. Yet we are debating legislation before the NWI meeting in two days time. We should be ahead of the game. We should have used the last 12 months to identify the extent of overallocation and river health status. Instead, we go to the table having categorically failed to do either.
Having heard about the extraordinary steps proposed by the Victorian Government, I can only say that I am ashamed that the Government and the Minister have comprehensively failed the overwhelming majority of the people of New South Wales on this issue. It is a shame that the Minister has shown such a lack of foresight and a narrow-minded perspective. Time and again I speak on bills put before the House by Minister Knowles. I have had long discussions with him—but they have probably all been one way. It is the same every time: the Minister seems to be incapable of recognising the needs of the environment. He seems to have an acute lack of attention for such issues. He talks about delivering green outcomes in brown paper bags and all sorts of things, but all I see is absolute ignorance in terms of environmental objectives and an acute departure from the espoused conservation concerns of the Carr Government.
Water is a defining issue for the New South Wales Labor Government's relationship with the conservation movement and the Greens in this State. I am not surprised, but I am heartily sickened by the lack of attention given to these issues by the Minister. I will raise this matter again in Committee. Whenever my staff has asked the Minister's office to consider a significant number of amendments that have been put forward in good faith on behalf of the conservation and indigenous movements—whether people agree or disagree with the amendments, they are well considered, not frivolous—on every occasion they are told that the amendments are "quite reasonable in certain circumstances but we really do not have the time". That is the way the Minister treats my office staff. His attitude seems to be: I will do it my way. I have dealt with many Ministers in the New South Wales Labor Government over time, and few of them have been so lacking as this Minister in their ability to respond to discussion points and concerns. Heaven help us if Craig Knowles ever becomes the Premier of New South Wales.
The Hon. Dr PETER WONG [4.55 p.m.]: As is often the case, the Water Management Amendment Bill is a legislative compromise at best. The bill shows an imbalance between bigger business, the irrigation industry and agriculture needs and environmental responsibilities, and blatantly ignores indigenous water rights and interests. Superficially, the bill seems to deliver many wins for the farming and green industries, including stronger tracking of access rights, a broader scope for transfer transactions and the transient security of access share entitlements being put into perpetuity. The Unity Party is of the view that, while there may be nominal advantages, such as wider options on access rights, they do little to offset the vast spectrum of uncertainties and risks still faced by industry interests, and actually deliver little substance in reference to improved demand management overall.
It is difficult to ignore the ever-expanding pressure for fiscal efficiency. No one interest group seems more motivated by it than the Carr Government, even at the risk of public needs being unmet or resources being squandered. The Unity Party is concerned that in the interest of fiscal efficiency this legislation will pave the way for corporatisation and privatisation, enveloping another public resource sector, namely, water. In particular, I refer to the ease with which this Government will consider public resources as commercial commodities that can be bought, sold and traded as though they are part of a Monopoly game board.
My concerns are compounded by several other factors, including trading rights being vulnerable to accumulation under the corporatisation-privatisation model, which in turn creates ideal conditions for monopolies or duopolies. This bill is weighty, intricate legislation but lacks any substance to convince me that balanced and sustainable long-term benefits will be delivered. In contrast, I am wary that instead we will be laying the groundwork for far more complex water management predicaments in the future. The end result of this legislation could well be a big win for big businesses. The losers will be small farmers, the environment and the indigenous people of this State.
Reverend the Hon. FRED NILE [4.58 p.m.]: The Christian Democratic Party supports the Water Management Amendment Bill, which we regard as important. As I travel around New South Wales I see the serious lack of water. Some months ago when I was in the Bourke and Broken Hill regions of the State I saw the dry river beds, highlighting the drought conditions. The Government is seeking—and it has obviously been open to criticism by the Greens—to resolve a difficult situation. There is no easy way ahead, so hard decisions have to be made. I believe the Government is making those hard decisions in good faith.
It is important that certain objectives be achieved, and the main objectives of this legislation are to establish secure water access entitlements to drive investment in sustainable agriculture; to give clear legal status to environmental water and the capacity of catchment management authorities to administer environmental water as an integral part of total catchment management; to provide a transparent water planning process where any future changes to access share entitlements are based on independent assessment of catchment outcomes and socioeconomic impacts; and to create streamlined and robust administrative arrangements to facilitate trade in water to generate greater economic returns and assist industry adjustment. Those words can be found in the second reading speech of the Minister for Natural Resources.
The Hon. Ian Cohen has attacked the bill and said that there must be greater concern for the supply of environmental water. On the other hand, the practical needs of farmers and irrigators must be taken into account. That is the balance that has to be achieved. I believe that a government—and especially a Labor government, which has an environmental concern—would not deliberately endanger the environment. It is trying to solve a difficult situation with limited resources. The Greens say that more water is needed for the environment than is planned under the legislation, but to provide more water for this purpose would create major economic problems in the State, particularly for irrigators.
At the many meetings I have had with irrigators over the years I have been a member of this place irrigators have expressed their concerns about the difficulties associated with planning without certainty. This legislation is trying to give them some certainty, but the Government has to act with restraint in this regard. It must meet the needs of others—not just irrigators. Their needs will increase as time goes on as larger areas are opened up in New South Wales for irrigation. Recently I saw how the cotton farms in northern New South Wales have grown. I was amazed. Huge areas of countryside are under cotton. We are no longer talking about farm blocks; some of these cotton properties stretch to the horizon. Given their need for massive amounts of water there has to be some regulation of irrigators by the Government to ensure that as their landholdings expand they do not demand a greater percentage of the available water. It would be better for the Government to ensure that as areas are opened up they are adequately supplied with water. That may mean some restriction on land that is under irrigation if there is insufficient water.
There are three categories of amendments in the bill. The first is water planning and processes and water access share entitlements. The second is integrated management water for environmental incomes. The third is the implementation of the water-sharing plan necessary, in part, to ensure they operate from 1 July in the manner intended. So, there is a time limit on this legislation. It has to be passed by the House otherwise there will be a great deal of confusion in the agricultural and irrigation areas.
I share the concerns of the Hon. Ian Cohen about the role of Aboriginal communities in these decisions. I have always said they should have representation on the various bodies that make these decisions and that they should be continually consulted. It is to be a shame if this Labor Government, which has always boasted about its Aboriginal credentials, avoids—as has happened on other occasions—direct consultation with Aboriginal communities and their leadership. I know there have been problems with the New South Wales Aboriginal Land Council and about the right people with whom to consult, but there are strong regional land councils that could be involved in the process. It is important that there is goodwill involved in water management plans to avoid friction with and criticism from Aboriginal communities.
We support the bill. It is complex and with regard to many of its provisions we have to rely on the wisdom of the Government. This is the best solution it can come up with for this limited resource. We are all aware of those limitations, even in a great city like Sydney, which is affected by water restrictions. There is no justification for water restrictions in New South Wales; there should have been adequate planning to accommodate areas of population growth. The problem will not be solved merely by the Government saying that people must use less water. Greater attempts must be made to ensure adequate supplies of water for the city of Sydney and its suburbs as well as for regional towns and communities throughout New South Wales. It is the responsibility of the Government to invest in infrastructure—that means in dams—in areas of the State that enjoy high rainfalls and then have that water piped to metropolitan areas and areas in need.
It does not matter that the dams would be some distance from Sydney. In Western Australia and South Australia there are many hundreds of kilometres of pipes transporting water to areas in need. That may be a consideration, not just for Sydney but for country regions as well. We support the Water Management Amendment Bill.
The Hon. JON JENKINS [5.07 p.m.]: I was not going to contribute to this debate, but I could not let pass some of the comments made by the Greens member. I do not live in an area that suffers from drought. Where I live it is not unusual for 20 inches of rain to fall in one night. As far as I know we have never had water problems, so we are very lucky in that respect. I will not pretend to understand the complex issue covered by this legislation. One could spend one's whole life trying to understand it. However, I believe that balance is required in the system. We have to try to achieve the maintenance of the environment as well as allow irrigators to grow crops in a reasonably reliable fashion. This legislation at least attempts to strike that balance. As Reverend the Hon. Fred Nile said, to a certain extent we must rely on the Government and hope that it has got the issues generally right after appropriate research and proper consultation.
Three issues were raised earlier in debate that I cannot let go unanswered. First, the Greens member ranted on about Aboriginal access. I tell him now that one of my party's biggest supporter groups is the Aboriginal people, who have been banned from wilderness areas and national parks under the current regime of management.
Mr Ian Cohen: Point of order: For the life of me I cannot understand how the member's assertions about Aboriginal groups being banned from national parks has anything to do with land use and water allocation. In his typical fashion the member is straying far from the bill. I ask that he be drawn back to the debate.
The Hon. JON JENKINS: To the point of order: It was the honourable member who raised the issue of hunting and fishing in the valleys and around the Macquarie Fields area.
The DEPUTY-PRESIDENT (The Hon. Kayee Griffin): Order! I ask the Hon. Jon Jenkins to confine his remarks to the subject matter of the bill that is being debated.
The Hon. JON JENKINS: Second, the Greens member talked about the frustration when committees do not listen to submissions and do not acknowledge those who appear before them. I have had experience of that when I have fronted some Greens committees. Third, the member talked about trying to manage the environment with science. What a joke! The pantheistic Greens member is saying that we are ignoring science on this issue. I conclude my speech.
Ms SYLVIA HALE [5.11 p.m.]: My colleague Mr Ian Cohen has spoken at length on the Water Management Amendment Bill and I intend to make a few points about the impact of the legislation upon local government. Let me reiterate at the outset that the Greens are totally opposed to the privatisation of water. Allowing water to be traded to its "highest value use" has implications for every sector of our society, and specifically for local government. We need to remember that local government is an extraordinarily significant player in the water industry. Many of its activities are intimately connected to the provision of water for a variety of purposes—for example, drinking water, parks and gardens, pools and recreational facilities, sewerage and stormwater and industrial processes. Obviously, the supply of water is of critical importance to local government.
Local government is equally concerned about environmental outcomes that derive from the utilisation of water. For example, it is concerned with the management of parks and gardens, which come within its responsibilities. Often it is directly responsible for managing wetlands and bushlands. In that regard, many councils have undertaken major activities in an attempt to regenerate bushlands and to re-establish wetlands that have deteriorated or disappeared altogether in the face of inappropriate development. Councils are also responsible for managing healthy creeks and rivers because the provision of a healthy water supply and a healthy environment is intimately connected to the provision and maintenance of a healthy community. They are responsible for not only the physical environment but also the aesthetic quality of life concerns that people value and which they look to local councils to preserve.
The Greens believe that perpetual licences in a free market would be an absolute disaster for local government. This bill will allow councils to apply for additional water allocations or licences based on population growth but not for industrial activities. For those activities councils will need to purchase additional licences. The bill is silent on this issue and it was difficult, in fact impossible for my office to obtain information about what would happen when a council seeks to introduce new infrastructure such as swimming pools and parks. If a council does that, will water be provided for the new facility or will the council be denied that additional allocation? Will the council, when it seeks to provide such amenities for its residents, be forced to compete for the water allocation on the private market?
The competition in water licences is such, given the particularly strained financial circumstances that councils are currently experiencing—and we can expect will experience in the future—that the privatisation of water licences and the grant of perpetual licences will mean that councils will be prevented from providing the very amenities that their residents value so much. The Local Government and Shires Association has consistently asked that council-related industrial activity be exempt from the provisions of the Act, but the Government has refused to give ground on that issue. The Local Government and Shires Association, in a submission to the white paper on this issue, states:
The Associations have been informed by councils in southern border areas of New South Wales and elsewhere that they are at a disadvantage in seeking to attract industrial development to their towns when compared with towns interstate. We do not understand, for example, why both New South Wales and Victoria should be subject to the same Commonwealth/State agreements, yet New South Wales communities appear to be disadvantaged by the embargo on new allocations, and by the rules on allocating water for domestic use only. The details of Murray Shire Council's case that it has been disadvantaged in providing water for new industries when compared with communities in Victoria, have been made available [to the Government] by the Associations …
Many councils have raised the issue of water for urban industrial and commercial needs. While the Associations are supportive of the principle of providing for growth through growth factor arrangements, rather than through one-off allocations for future growth, the White Paper does not provide—
Nor does this legislation—
for any non-market means to address legitimate regional development issues such as the provision of water to attract industrial and commercial development. The history of regional development in New South Wales suggests that incentives such as the ready availability of water have been significant in influencing investment decisions. Given that urban water demands require only a small percentage of the available water resource, State agencies, through water management and regional development policies, should consider the benefits of ensuring sufficient water is available to encourage regional development through non-market means.
Many councils have noted that the White Paper contains no explicit provisions—
Nor does the Act—
to permit councils to access water for road construction and maintenance activities, and for fire fighting. The Associations advocate that existing provisions in this regard be carried over into the new legislation so that these important Local Government water uses are secured.
The Associations concur with Dubbo City Council's submission that Operating Licences are inappropriate for Local Government water businesses. Local Government is a responsible water manager in its own right, accountable to its customers both democratically and financially. Local Government water operators are professionals, able to determine best practice for the operation of their businesses in consultation with the community and their elected local representatives.
One need look only at the implementation of water restrictions. That responsibility has been given to local government authorities, presumably in the belief that they are capable of implementing the legislation. However, according to this legislation, it would appear that they are not to be trusted when it comes to fostering industrial activities within their regions that might require additional water allocations.
The Local Government and Shires Associations have consistently asked that council-related industry be exempted. However, as I said, the Government has refused to give ground on that issue. That response raises a number of questions. What happens when communities experience unplanned development or growth that is not necessarily connected to population growth? They might wish to establish a new industrial undertaking in an area, but because the legislation does not allow for water allocations to be made available to councils, other than through participation in the private water market, development will be stunted, particularly in rural and regional areas. Local government will be forced to compete in the free market with agribusiness and large industries for additional licences.
That has huge implications for the growth and development of small towns. I believe the cost of licences will only increase, which will make the situation even more difficult for local government authorities that are strapped for cash. The Greens resolutely oppose this legislation. We believe there is very little, if anything, to be said in support of it. Ratepayers and businesses will confront increased costs, and security of supply will be reduced for many people and groups. It will also limit the ability of rural towns to expand and develop. The Local Government and Shires Associations faxed a letter to members on 21 June 2004. That letter contains a specific request that the legislation be amended, and it states:
We write to you seeking support for a number of amendments to the State Water Corporatisation Bill—
The Hon. Rick Colless: Point of order: I think the honourable member is speaking to the wrong bill. She is speaking to the State Water Corporation Bill. We are debating the Water Management Amendment Bill.
Ms SYLVIA HALE: I withdraw that. The honourable member is correct. I will take the opportunity when that bill is debated to read the letter into Hansard. The Greens believe that the privatisation of the water supply is a backward step.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.24 p.m.]: The Water Management Amendment Bill is very significant, because the increasing recognition of the incredible value of water is causing a huge clash of interests between those who grow non-native crops, which require a great deal of water, and those who grow native crops. The use of water entitlements and the redistribution of water have serious, long-term ecological implications. The concept of mining land to exhaustion has frightening connotations if water is seen merely as money and land merely as a commodity. Therefore, the idea of regulating water use to balance interests is reasonable and it must be tackled carefully.
The question before the House is the extent to which this legislation achieves that. We are not dealing simply with rights in perpetuity; we are dealing with rights in perpetuity to a fraction of the available water. If the available water is deemed to be a certain amount, the entitlement is not to a volume but to a percentage of that volume. It is incorrect to see it simply as a volume. If it is found that the amount that can be sustainably extracted is far less than the existing extraction rate then the pain will be distributed across all entitlements.
The Australian Democrats are concerned that people who have taken out entitlements to safeguard a minimum level of supply—the sleepers and dozers—may be disadvantaged. Non-irrigators who live in irrigation areas say that extraction has lowered the watertable and that their vegetation is dying. It is affecting their land adversely and they do not want to drill bores to get water to save their vegetation, but that is the only alternative, unless restrictions are placed on those who are causing the problem. They are afraid that they will be forced to drill holes to get water and to compete using their sleeping licences. This transfer of a public resource to some individuals to make money to the detriment of others should be closely examined. Given that situation, water-sharing plans are critical. The Minister's power and the responsiveness of the system are also very important. It is not appropriate to defeat this bill, because if we do we will have no plan. The status quo is unsatisfactory because of the increasingly recognised vital role of water in economics. Whatever we may say, economics is a major motivating factor in our society.
This bill amends the Water Management Act 2000. It is a very large and significant piece of legislation. I recall that the 2000 debate lasted about three days. Irrigation is a $3 billion industry in rural New South Wales and it is the largest user of water on the driest continent on earth. Rural New South Wales has 66,000 water use licences. The conservation movement is concerned about environmental water; plan making, including public participation and judicial review; stock and domestic water entitlements; judicial review and the role of the Land and Environment Court; the granting of licences and approvals, in particular the issuing of licences in perpetuity and the rolling over of existing approvals without environmental impact studies; the scheme for embargoes on dealing in water sources; and the role of the catchment management authorities and the Natural Resources Commission.
I note that the provisions outlined in parts 1, 2 and 3 of schedule 3 will now regulate water licences and titles like real property. Under these provisions all temporary and permanent water transfer licences will now be subject to stamp duty. The Leader of The Nationals in the other place was advised by the Minister's staff as follows:
The Australian Taxation Office has prepared a draft ruling indicating that generally the replacement of existing entitlements with access licences will not give rise to any capital gains tax implications. However, this position is yet to be confirmed where the replacement is issued to the person who is the landowner but who is not currently in occupation of the land to which the entitlement was attached.
In relation to the cost of dealing in access licences, such as transfers, the Government has agreed that a nominal stamp duty of only $10 will apply. This is to satisfy already existing legal requirements. Normal duty will be payable on the registration of security interests in access licences such as mortgages.
I note that the Minister in the lower House failed to confirm this information in his reply. I seek the Minister's assurance that this stamp duty will remain fixed at $10 per transfer. I acknowledge that New South Wales property values may not continue to rise, and that perhaps this is a new bonanza for the Government. I also note that the budget makes no reference to the projected revenues from this new stamp duty. If I am wrong in that respect, I would greatly appreciate the Treasurer pointing me to the exact page and reference number.
Where will the money raised from this stamp duty go? Perhaps it should go to the Aboriginal Water Trust. I am very concerned about the Government's lack of consultation with the New South Wales Aboriginal Land Council. In a briefing note provided by the Aboriginal Land Council with regard to this matter the council sets out seven steps that it believes would be necessary to secure more favourable outcomes for Aboriginal people with regard to water rights. Those steps are:
1. A commitment from the NSW Government to enter into Indigenous Land Use Agreements [ILUAs] before perpetual licences are granted;
2. Protection for Environmental flows;
3. A commitment from the Government not to extend the term of a Water Sharing Plan unless Aboriginal rights and interests have been adequately addressed as required by the Water Management Act 2000. There should be an audit of the Water Sharing Plans to assess the adequacy of each plan;
We would like the Government to provide such a commitment.
4. Standards and targets should be implemented under the Natural Resources Commission Act 2003 that reflect the obligations to Aboriginal interests under various pieces of legislation including the Water Management Act 2000;
5. A broad basis for Aboriginal cultural and economic access licences and a commitment that these will not just be tokenistic;
6. The Aboriginal Water Trust to commence operation as a matter of urgency and to be permanent;
7. Increased allocation of the Aboriginal Water Trust with a fixed and stable source of funds. Options for this included:
(i) Allocation of the stamp duty received from the sale of water licences; and
(ii) Representations to COAG by the NSW Government for a Commonwealth contribution to the Aboriginal Water Trust.
The bill changes the definition of "environmental water" in section 8 of the Act from three classes, being environmental health water, supplementary environmental water and adaptive environmental water, to two classes, being planned environmental water and adaptive environmental water. The effect of the new definition is to combine the previous categories of environmental health water and supplementary environmental water into one category, that is, planned environmental water. The reason for the change arises from the practical difficulty in managing supplementary environmental water, particularly where many of the categories set out in water-sharing plans were arguably related to fundamental ecosystem health.
The Environmental Defender's Office has expressed general support for the new definition and the removal of an arbitrary distinction between fundamental and other environmental health purposes. However, it may be noted that planned environmental water is not committed at all times as environmental health water previously was. It is acknowledged that water does not need to be flowing in a water source at all times, and that there may be benefits in managing a particular water course in a wetting and drying cycle. This point is picked up in section 8 (2) of the Act. However, the issue of requiring a certain amount of water within the river system is different from committing water to the management of environmental flows at all times—for example, holding the water in reserve for future events in a water storage. Having regard to the current wording of section 8, it is arguable that, in practical terms, the distinction between environmental health water and supplementary environmental water, as outlined in the water-sharing plans, will remain.
The bill makes a number of changes to the plan-making process, particularly the making of Minister's plans. However, although the Act provides for the making of management plans that address water sharing, water source protection, drainage management and floodplain management, only water-sharing plans have been made. Furthermore, all but one of the water-sharing plans gazetted to date have been Minister's plans, as distinct from plans prepared by management committees in accordance with part 3 of chapter 2 of the Act.
The bill proposes to simplify the process for making Minister's plans and clarify the commencement provisions for existing plans. Firstly, the timing and duration of the management plan under section 43 (1) of the Act is clarified in schedule 1 [13] of the bill to confirm that the 10-year period of operation for management plans runs from 1 July in any year. This is intended to coincide with the water accounting year. Schedule 1 [15] inserts into the Act new section 43 (4). The new section is relevant when considering the amendments to the compensation provisions.
Importantly, the bill inserts into the Act new section 43A, which deals with the extension of water-sharing plans. The purpose of inserting the section is to provide greater security to water users as to the basis upon which their share of water entitlements will be issued, as water-sharing plans determine the bulk access regimes for a water source. In attempting to balance this desire for security with environmental concerns, the bill introduces a process of auditing water-sharing plans by the relatively new Natural Resources Commission [NRC].
The NRC is a body established within the context of the Department of Infrastructure, Planning and Natural Resources. Conservation groups have raised concerns about the independence of the body, and suggested that it would be preferable for the Department of Environment and Conservation to play a role in the review process. It is also important to note that the NRC report will review performance within the previous five years. Essentially, this will be a review of the last five years of the current plans. Pursuant to section 50 (5) of the Act the Minister is required to cause Minister's plans to be periodically reviewed at intervals of not more than five years. The bill deletes that requirement. Having regard to the present levels of uncertainty as to how the plans will perform, variability in the systems and changing scientific knowledge, it is imperative that the plans be reviewed on a regular basis to ensure ecosystems are managed appropriately. The Democrats strongly believe that more regular reviews of the performance of water-sharing plans should be undertaken.
New section 43A (4) sets out the manner in which the NRC will carry out the review. This is focused on achieving statewide natural resources management standards and targets. Of note in this section is the absence of a direct reference to the performance of the plan against its own vision, objectives, strategies and performance indicators. The review process under new section 43A includes a call for public submissions, which are to be considered by the NRC. However, at this stage it is not exactly clear what the submissions are to respond to, and this aspect needs further clarification. Furthermore, the bill does not set time frames within which submissions will be invited, and we ask the Minister to address that matter in his reply. In relation to the amendments regarding the power of the Minister to amend or repeal a management plan, schedule 1 [17] inserts new section 45, which provides, in subsection (1):
The Minister may at any time, by order published in the Gazette, amend a management plan …"
While concurrence of the Minister for the Environment is required by dint of new section 45 (3), there is no role for public consultation in respect of amendments. It is arguable that safeguards are in place to protect the environment by reference to the basis upon which a plan may be amended or repealed under new section 45 (1) and (2). New section 45 (7) restricts the variation of a bulk access regime without the Minister having consulted with the management committee if a committee is in place for the water management area. However, this will only be relevant when a management committee has been constituted under part 3 of chapter 2, as distinct from an advisory committee, which is the case for all but one of the plans gazetted to date. There is also some uncertainty as to what role, if any, management committees will play under the bill, as the catchment management authorities will take over many of the functions under the Act, particularly where the provisions of the Catchment Management Act 2003 are vague in relation to those bodies' powers and functions regarding water management.
These amendments give the Minister a very broad discretion when making management plans. The sections excluded include notification of the scope of the plan, referring a draft plan to the Minister for consideration, public exhibition of a draft major plan, the ability to make submissions on a draft management plan, resubmission of the draft management plan to the Minister and making a management plan. These are essential to maintaining public involvement in the plan-making process. The removal of the periodic review of the Minister's plans, particularly when dealing with matters other than water-sharing plans, which are reviewed by the Natural Resources Commission, should not be supported, and the Democrats do not support it.
Significant amendments are proposed to section 47 of the Act, which deals with the validity of management plans. The privative clauses in section 47 offend the rules of law and privilege, certainty and efficiency over the proper operation of the Act. Legal challenges are already limited as they cannot be made unless there are reasonable prospects of success, and otherwise unmeritorious appeals can be dealt with by mechanisms such as adverse costs orders. I therefore cannot support this new section.
New section 47 (4) purports to limit the ability of any other courts, such as the Supreme Court or an administrative review tribunal, to judicially review the exercise of plan-making functions by a designated person. For the purposes of this section, proceedings are defined to include orders for prohibition, certiorari and mandamus and proceedings within the inherent jurisdiction of the Supreme Court, which is stated in section 23 of the Supreme Court Act 1970 to be "all jurisdictions which may be necessary for the administration of justice in New South Wales". Neither the explanatory note nor the Minister's second reading speech point to the types of Supreme Court, or other court or tribunal, actions that the Minister is seeking to exclude.
This new section relates only to challenges to the validity of management plans, and not to other challenges that may be available in respect of the broader operation of the Act. However, subsections (5) and (7) of new section 47 make it clear that the bill is seeking to exclude the operation of judicial review on the grounds of denial of natural justice or procedural fairness, except where proceedings are commenced in the judicial review period. It is also unclear whether the purpose of new section 47 is to limit the ability of appellate courts to reconsider the validity of management plans. This is an attempt by the legislature to prevent an appellate court making a declaration that a plan is invalid. With the exception of challenges currently on foot in the Land and Environment Court, the provisions of section 47 are proposed to apply retrospectively to management plans, and this the Democrats cannot support.
The bill seeks to limit stock and domestic water rights so as to protect those rights—for example, where land is subdivided—and to protect environmental water. Schedule 2 [2] seeks to amend section 52 (2) to restrict the ability of new landholders of subdivided land to take water contrary to prohibitions or restrictions imposed by the regulations. Further amendments of note are the expansion of the provisions in section 325 of the Act in schedule 2 [6], which proposes to grant the Minister broad-ranging powers to make directions to landholders to ensure water is beneficially used and not wasted or improperly used and, in regard to stock and domestic water, that water be used in accordance with guidelines establishing reasonable use of water for domestic consumption and stock watering.
However, it is arguable that the proposed amendments do not go nearly far enough. Firstly, directions are made to individual landholders and not on a larger scale, such as citywide water restrictions. Secondly, the directions are discretionary and it is likely that they will be made only if a particular landholder is known to be using watery improperly—a situation which may be difficult to police. Thirdly, the mechanism to ensure beneficial use is proposed to be through guidelines. As a general rule, guidelines are not strictly enforceable and non-compliance will not directly lead to sanctions, unless a direction is made and contravened. The provisions for the proper use of stock and domestic water should be strengthened to enable more stringent limitations to be placed on the way this water is used.
The bulk of the amendments in schedule 3 to the bill deal with the establishment of the Water Access Licence Register and the registration of dealings, security interests, caveats and other matters in that register. New section 71K enables a person dissatisfied with a decision of the Minister in relation to the keeping of the access licence to apply to the Minister for reasons for his or her decision, and for the Minister to provide those reasons. However, there is no time period within which the Minister must provide those reasons. We believe there should be such a stipulation. Secondly, and more generally, the amendments in schedule 3 confer additional powers on the Land and Environment Court in relation to matters deriving from the operation of the register, for example, items [21] and [33]. The Supreme Court of New South Wales deals with similar matters under the Real Property Act 1900 and the Conveyancing Act 1919, such as improper or fraudulent registration, disputes between security holders, et cetera. This will effectively extend the jurisdiction of the court to exercise quasi property law.
Item [6] of schedule 3 inserts new sections 71M and 71N, and item [11] inserts new section 71D. Those new sections deal with the transfer and assignment of access licences and entitlements to facilitate water trading. These provisions appear to be intended to commence in respect of all entitlements when the bill is passed or at a later date. It is also intended that all water-sharing plans, excluding the six groundwater plans, are to commence on 1 July. By virtue of section 71K of the Act, which is proposed to be renumbered 71Y under the bill, applications for the Minister's consent to dealings are to be dealt with in accordance with access licence dealing principles and access licence dealing rules established by a management plan. Conservation groups have raised the concern that where management plans have not been prepared or enforced it is uncertain what rules, if any, will govern trading in those areas, in particular groundwater.
Schedule 4 [3] amends section 56 (2) by inserting the provision that in addition to specifying the share component of an access licence as a specified volume or portion, it may also be expressed as a specified number of units. Item [4] inserts new section 57, which revises and reorders the categories of access licences. This is of relevance when considering the priority granted to access licence holders under the bulk access regime. New section 65 provides for the Minister to impose an embargo on applications for access licences for specified water management areas. There has been advice that the new section will establish, in effect, an embargo over the whole of New South Wales and the Minister may then auction new licences. However, the circumstances in which new licences will be declared should be clarified.
One of the most significant changes proposed in the bill is in schedule 4 [3], which deletes sections 69 and 70 of the Act, which deal with the duration of licences, and replaces them with new section 69, which states:
An access licence ceases to be in force on the date that the cancellation of the licence is recorded in the Access Register.
This effectively establishes licences that operate in perpetuity, or until surrendered, revoked, et cetera. The revocation of such licences, except where they are otiose, may give rise to compensation. However, this issue remains open in light of risk-sharing matters to be dealt with by the National Water Initiative. Items [15] and [16] of schedule 4 deal with the surrender and cancellation of access licences. New section 77 (5) enables the Minister to subsequently deal with a surrendered access licence in any manner that a holder of the licence may deal with it, for example, transferring the licence. This provision has the effect, in certain circumstances, of conferring on the Minister the benefit of a licence for use or trade and introduces him or her as an active player in water trading markets.
Item [17] of schedule 4 amends section 78 (1) (c) of the Act to expand on the circumstances in which the Minister may suspend or cancel an access licence if fees, charges or civil penalties have not been paid. Item [18] amends section 78 (3) of the Act to clarify the limitations placed on a licence holder when his or her licence is suspended. The limitations affect the taking of water under the licence and any dealings with entitlements under the licence. In particular, new paragraph (c) states that "appropriate water allocations continue to accrue to the account for the licence". Whilst this provision appears perverse initially, it is understood that the primary cause for licence suspension will be no payment of fees and charges, which are usually made good within a few weeks or months. If water allocation accrual were suspended, this would have potentially significant impacts on water users over a water year. Read in conjunction with the proposal in new section 85B to enable the Minister to extract water debit penalties for water taken illegally, this provision seems reasonable.
It is proposed that the provisions for keeping water allocation accounts under section 85 of the Act be amended to reflect the nature of amendments to provisions in the bill dealing with water trading—that is, sections 71T and 71V. In addition, in new section 85A the bill makes special provision for taking water from uncontrolled flows. These provisions allow the Minister—in circumstances where a management plan makes provision for the taking of water from uncontrolled flows—by order in writing, to authorise holders of regulated river high or general security access licences to take water from water sources that have not been credited to the accounts of those licences. This provision is arguably introduced to legitimise provisions to take uncontrolled flows that currently exist in water-sharing plans for areas such as the Murrumbidgee and the Murray. New section 85A (3) states that the order must be in accordance with a relevant management plan and water-sharing provisions, and that it must specify the circumstances in which water may be taken—for example, in accordance with announcements made by the Minister.
Under the Act the primary circumstance in which the payment of compensation is contemplated relates to the reduction in water allocations as a consequence of the variation of the bulk access regime that has not resulted from the establishment of a management plan. The proposed amendments to the duration of water-sharing plans that established the bulk access regime associated with a management plan will be protected from compensation. It is interesting to note that an amendment to the bulk access regime made by the Minister in the public interest may be compensable. This may act as a deterrent to the Minister exercising his or her power to amend the bulk access regime on made ground.
The current framework for compensation is premised on the existence of prescribed period licences. At the expiration of a licence the Minister would have the discretion not to renew the licence for reasons that may relate to the environmental health of the water source. The proposed shift to perpetual licences limits the Minister's discretion in this regard. Although the Minister retains the ability to revoke, suspend or cancel a licence, new section 87A states that compensation will not be payable if an access licence is suspended or cancelled. It is assumed that the compensation will be payable if a licence is revoked. This assumption is supported by the fact that the Minister will pay compensation if a licence is acquired by the Minister pursuant to section 79.
Items [31], [32] and [33] of schedule 4 propose amendments dealing with the imposition of variation of conditions, duration and extension of approvals. These provisions will operate in conjunction with schedule 6 to the bill, which facilitates a rollover of existing entitlements to approvals under the Act. Essentially, all existing works, use and activity approvals will remain in force for their duration. When their term comes to a close, the holder may apply for an extension of that approval. Conservation groups have expressed concerns that the rolling over of approvals will deny government and stakeholders the opportunity to review the environmental impacts of activities that may have been approved in a policy or practical climate where such concerns were not of primary relevance to the decision maker. The above provisions are clearly intended to simplify the process for converting approvals to the new regime and to make environmental impact assessment the exception and not the rule.
However, it is suggested that the impact of existing water works or activity approvals should be assessed, possibly by a basin-wide audit, starting with the most stressed and intensely developed areas, so that the cumulative effects of continuing existing water developments can be assessed and mechanisms to respond to them, such as by triggering an assessment process, implemented. In addition, it is the Democrats position that approvals should not continue to be rolled over indefinitely. Although it may be convenient to extend the first approval as part of transitional arrangements, it is submitted that only one extension should be granted without environmental assessment and that the extension should be for a finite period.
A further point to note in respect of the extension of approvals is that the public consultation process and consideration of an application by the Minister set out in sections 93 to 96 of the Act do not need to be followed. This expands the Minister's discretion when considering matters relevant to the decision to extend an approval. That is recommended in new section 105. It is arguable that this issue is best dealt with in new section 107 (5), which requires amendments to an approval that result in the approval concerned relating to additional users, works, activities or land to be advertised and determined in the same way as an application for a new approval. The bill gives too much power and discretion to the Minister. Its major fault is that the periods are too long, in that it is almost a licence in perpetuity. This is dangerous if there are major changes to the ecosystem. Although it is only a percentage of the water, it assumes fixed percentages and the variation of those percentages may be necessary for the environment, with changing scientific knowledge or changes to global warming, which make a huge difference in that the percentage allocated to the environment is insufficient in the medium term.
The perpetual licences will then become dangerous to the environment because the absolute amount of water will be small, particularly when the sun is more active, the air contains more carbon dioxide and the total amount of water falling is considerably less than in the past, when records were kept. In Perth changes have taken place over the past 20 years and changes of this magnitude will have an immense effect. The system of in perpetuity is a fossilisation of entitlements and the allocation system. The Australian Democrats will consider moving amendments in Committee to rectify the problem because we do not have sufficient knowledge to give perpetual licences. It is a valid argument that, without some degree of water security, loans will not be granted, so it is important that a middle ground be reached. Likewise, an entitlement may be too short to ensure bank capital and an entitlement that goes for too long may be impractical in the medium to long term. Perpetuity needs further scrutiny.
The Australian Democrats are concerned about the extent of the Minister's discretion. To suggest that the Minister is always above reproach and that departments always make correct decisions is fantasy. In areas where Ministers have had discretion with regard to property development, particularly when considerable sums of money rely on ministerial decisions, such a move is particularly dangerous. The process requires more transparency and the time periods should be prescribed rather than perpetual leases being granted. Those matters must be examined before the Democrats give approval to the bill.
The Hon. HENRY TSANG [Parliamentary Secretary] [5.57 p.m.], in reply: I thank all honourable members for their contributions to the debate. I reiterate the intentions of the bill. Honourable members would be aware that the bill introduces a number of important reforms to the Water Management Act 2000 that aim to provide greater security and flexibility for water users, reduce unnecessary red tape and improve arrangements for water for the environment. The bill is a significant leap forward on the current Act in regard to protecting investor certainty and the environment. Users will now have before them a clear and transparent process for determining future water sharing arrangements, involving collection of the best available scientific and socioeconomic information.
Time and costs will not be wastefully spent on remaking every water-sharing plan when there may not be a compelling reason to do so. Instead, by focusing on overall catchment health, this process will ensure that priority catchment health issues are identified and addressed in a cost-effective manner. The introduction of perpetual access licences provides licence holders with an ongoing share in the available water in a river or aquifer. Contrary to some of the rhetoric that we have heard, this does not give away the water. The Act still vests the right to the control, use and flow of surface water and underground water in the Crown on behalf of the community as a whole.
The Act establishes a process through water-sharing plans for publicly establishing the way that water is to be shared between water users and the environment. Perpetual access licences provide an ongoing share in the water the plans make available for extraction. The change from licences being expressed as a volume to being expressed as unit shares is designed to make that abundantly clear to all. The rules for the overall sharing of water between the environment and extractive use remain firmly in the hands of the Government and the community. The bill also significantly enhances the provisions of the Act relating to the access licence register. The new provisions are designed to lead to the register being every bit as good as the land register system. The provisions for security interests, caveats and making all licence dealings only effective when registered are key elements.
The bill also includes new measures to lay out a better future framework for environmental water. In addition to the fundamental water set aside in the rules in water-sharing plans, additional water for the environment can be added at any time by investment in either water-saving infrastructure or the purchase of existing licences. Public money can be leveraged with private funds to maximise this opportunity. This will increase the opportunities for providing more water for the environment. Further, the management of this water is being properly integrated into the catchment planning process by vesting such licences in the new catchment management authorities and linking them with the catchment action plans. I will now respond to some of the matters raised in the debate by honourable members.
The Hon. Rick Colless asked a very important question: Are the proposed penalties for illegally taking water a double punishment? Taking water illegally affects the rights of other water users and water for the environment. There is no doubt that adequate measures are needed to provide a deterrent. The Act currently gives the Minister a range of penalties to use, depending on the circumstances. These range from penalty notices and prosecution through to suspension and cancellation of the access licence. However, the value of water can be such as to make it worthwhile to take the water and wear a fine. This is not satisfactory at all. That is why a water payback penalty is essential. The addition of the ability to charge a fee for the water taken is just another penalty available which can be used when appropriate.
Having a range of penalties to use allows officers acting under delegated authority from the Minister to make the punishment fit the crime. The way these penalties will be implemented will be set out in a compliance policy to be published in the future. The Hon. Rick Colless sought an assurance that all of the bodies involved in water management in New South Wales will be properly co-ordinated. On behalf of the Government I can assure the House that this will be so. The honourable member also asked another good question: Why is the Government proposing initiatives on the use of stock and domestic rights? Growth in basic stock and domestic rights, and inefficient or excessive use of stock and domestic rights, can have potentially significant impacts on the rights of licensed water users and on the environment.
This is a particular problem on the New South Wales coast where, through land subdivision, a single right can expand twentyfold or thirtyfold. This has been raised by water management committees, local communities and peak groups as being a serious problem both for rivers and for other water users. The Government is determined to take a fair, practical and targeted approach to this issue. This is not about introducing blanket restrictions or disadvantaging people who use their rights responsibly. Nor is it about restricting subdivisions of land where the subsequent property is still a genuine farm. In relation to the problem of growth in use of this right through land subdivision, the Minister will be able, by order, to restrict growth of these rights in specified areas. Before imposing these measures in the regulations for specified areas, there will be consultation with local communities and local government in those areas.
In addition, New South Wales will be able to issue guidelines on the reasonable use of stock and domestic rights. These will provide a standard for reasonable use of the resource which landholders will apply to themselves. I anticipate that the guidelines will vary for different parts of the State to reflect the variation in climate, property sizes and water needs. The preparation of such guidelines will involve extensive public consultation. Once published, the Government will distribute them widely and actively encourage their adoption. As a last resort, the Minister will be able to issue appropriate direction notices to those users who wilfully waste water. The Hon. Rick Colless also asked: Why is the Government not giving supplementary water licence holders perpetual licences? Supplementary water is water that supplements a licence holder's regulated allocation. It is water over and above regular entitlement. Usually, it is only available when dams overflow, when there are large or excessive flows in regulated rivers or when the demand for water is low.
When there is more water available than is needed to satisfy environmental requirements, or higher security requirements—for example, high security or general security water—then supplementary access is made available to these licence holders. In a sense, therefore, supplementary water is bonus water. As such, it is less secure than other water and does not share the same priority. If supplementary water licences were made perpetual, the distinction between supplementary water licences and higher priority licences would be lost. This would have two negative consequences: first, it would devalue the higher priority licences; and, secondly, it would send a signal to industry that supplementary water is more reliable than it truly is, and may lead to bad investment decisions. By not making supplementary water licences perpetual, these licence holders do not lose anything. Nothing changes for them. It is just that this bill changes the type of licence for the other categories of water. It is important for industry to have accurate signals about the variable availability of supplementary water so that sound investment decisions are made. While we want people to invest, we want them to invest on more than just a bonus that may not always occur. I had intended to table this information, but I have read it onto the record for public consumption.
Mr Ian Cohen asked an important environmental question: Will perpetual licences make it harder for the Government to provide water for the environment? The introduction of perpetual licences will not affect the Government's ability to provide water for the environment. This is because environmental water is determined by the rules of the water-sharing plan. The tenure of access licences has no bearing on the operation of these rules. A perpetual access licence gives the entitlement holder a perpetual share in the available pool of water for extraction. It is important to emphasise that last point, because the water user gets a perpetual share in the available water, not a guaranteed volume of water. In addition, the bill provides for mechanisms for the Government and private parties to provide additional water for the environment through investment in water savings or by buying access licences and committing them to the environment.
Mr Cohen also asked why the bill does not specify minimum increases in environmental allocations over a fixed period. The Government does not view this proposal as a practical way forward. The Water Management Act 2000 put in place a process for determining water allocations for the environment and for users, based on water-sharing plans prepared in consultation with regionally based committees. These plans address overallocation, taking into account available scientific information and socioeconomic issues. The bill takes this process one step further by establishing a clear, transparent and independent process for determining whether the plans meet their environmental objectives in the context of an overall assessment of catchment health. In this respect, the bill is very much consistent with the outcomes-focused approach being pursued under the Living Murray initiative.
Achieving the best environmental outcomes is primarily a matter of identifying the priority catchment health issues and developing strategies for addressing these. A certain percentage increase in environmental allocations may not be required to address these issues. For example, the issue might be water quality. It will be the job of the Natural Resources Commission [NRC] to determine whether, and the extent to which, environmental water allocations need to be increased. It will then be a matter for the Government to make a decision, whatever risk-assignment model is developed.
Mr Cohen also asked: What initiatives can Aboriginal interests expect from the bill? The intent of the initiatives is to fully involve Aboriginal interests in the access licence system and to ensure that their particular needs are provided for. Several water-sharing plans make provision for access licences for Aboriginal cultural purposes. The bill allows for this subcategory to be established in regulated, unregulated and groundwater systems. Regulation will ensure that such licences may be applied for in every water source under the new Act. The bill also allows for an Aboriginal commercial subcategory of access licence in those water sources where the plans provide for them. Of course, water is already available where the basic landholder rights provisions apply to Aboriginal situations, as are domestic and stock access licences. None of these arrangements is linked to native title. This is a separate pathway that will always be available. There is also a range of improvements relating to environmental water that may materially support Aboriginal interests.
Finally, Mr Cohen asked whether NRC reviews include appropriate consultation and public review. In setting up the commission it is critical that it maintains its independence and be given some flexibility in how it operates. While public input to reviews and public exposure of recommendations is essential, it is desirable to give the commission considerable flexibility in how it obtains input so it can adapt to the particular issues and circumstances of each review. The Government will expect the commission to demonstrate in its report that it has undertaken an appropriate process for obtaining public input.
The Hon. Dr Arthur Chesterfield-Evans asked: What are the stamp duty and GST implications for the new water access licence system? In relation to the cost of dealing in access licences, such as transfers, the Government has agreed that a nominal amount of stamp duty of $10 will apply. The Government has no plans to change this. Normal duty will be payable on the registration of security interests in access licences, such as mortgages. I understand the no GST is payable for applications for water access licences or water access licence dealings. The Hon. Dr Arthur Chesterfield-Evans also asked how the Government will ensure that potentially damaging water use activities will be prevented if it is to allow applications for works and water use approvals to be extended without an environmental impact assessment.
I inform the honourable member that the Water Management Amendment Bill allows a risk-based approach to be adopted in relation to the extension of approvals for water use and works. Mechanisms will be employed to identify those uses and works in specified areas that pose substantial environmental risks and which therefore require environmental assessment. Uses and works that do not fall into this category will not require assessment. This means that instead of consuming resources on applications that do not need an environmental impact assessment, resources can be targeted at those uses and works that pose significant environmental risks. Time and costs will be saved, but the Government's ability to maintain adequate environmental controls over potentially harmful activities will not be compromised. The powers of the Minister to deal with environmentally damaging activities or breaches of approval conditions through direction notices or suspending and cancelling approvals will remain in place. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Ayes, 30
Mr Burke
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Mr Colless
Ms Cusack
Ms Fazio
Mrs Forsythe
Mr Gallacher
Miss Gardiner
Mr Gay | Ms Griffin
Mr Hatzistergos
Mr Jenkins
Mr Kelly
Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Obeid
Mr Oldfield
Ms Parker
Mrs Pavey | Mr Pearce
Ms Robertson
Mr Ryan
Mr Tingle
Mr Tsang
Mr West
Tellers,
Mr Harwin
Mr Primrose |
Noes, 6
 | Dr Chesterfield-Evans
Mr Cohen
Ms Hale
Dr Wong
Tellers,
Mr Breen
Ms Rhiannon | |
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time and committed.
[The Chairman left the chair at 6.27 p.m. The Committee resumed at 8.00 p.m.]
Clauses 1 to 4 agreed to.
Mr IAN COHEN [8.00 p.m.]: I move:
No. 1 Page 3, schedule 1 [1], proposed section 8 (1) (a), lines 12 and 13. Omit "to the extent committed".
The Water Management Act 2000 quarantined fundamental ecosystem health water from being traded. The Greens believe this protects an important concept. A minimum amount of water must be allocated to each river and groundwater system in New South Wales to ensure that vital ecosystem functions occur and that the water remains healthy. In the subsequent planning process, the Government allocated virtually no water for fundamental ecosystem health purposes, preferring to allocate supplementary environmental water, which is contingent upon a range of factors such as damming, flow levels and so on. Unlike fundamental ecosystem health water, this water can be traded for purposes other than delivering environmental flows. The trade of water to another purpose means that that water is no longer stored in a dam and that the contingency triggers for delivering environmental water are less likely to be reached. Planned environmental water is required for fundamental ecosystem health. That protection should not be diluted by allowing commercial considerations such as trade to influence decisions about its delivery or the circumstances that trigger its delivery. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.01 p.m.]: The Government does not accept this amendment. Its effect would be to prevent water in water sources having other uses when it is not required for the environmental purposes specified in the water-sharing plan.
The Hon. RICK COLLESS [8.02 p.m.]: The Opposition will not support this amendment.
Amendment negatived.
Mr IAN COHEN [8.03 p.m.]: I move:
No. 2 Page 3, schedule 1 [1], proposed section 8 (2), line 20. Insert ", delivery" after "establishment".
This amendment makes provision for the delivery of environmental water. If water is allocated to, for example, an icon site such as a wetland, a plan must make provision to ensure that the water can be delivered to the site and that it is not lost along the way. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.04 p.m.]: The Government does not accept this amendment. It is unnecessary because provision for the delivery of environmental water is already part of the maintenance of environmental water rules. Therefore, it is already required.
Amendment negatived.
Mr IAN COHEN [8.05 p.m.]: I move:
No. 3 Page 3, schedule 1 [1], proposed section 8 (2), lines 22 and 23. Omit "do not need to". Insert instead "may".
This amendment clarifies that in some river systems it is appropriate to manage plans to specify a minimum quantity of water at all times. That is particularly the case in coastal and unregulated rivers in which a cease-to-pump rule is necessary to maintain connectivity between deep pools. This bill provides an out for those who would seek to pump our rivers dry and then claim that that is a natural occurrence. The Government claims that the wording suggests that water must be in the river at all times and that that is unnatural. Although it is true that rivers can stop flowing in some places, that argument is now being used as an excuse to maximise extraction in dry times. That is when the irrigators need the water most, but it is also when the fauna and flora, which depend on that water for their very existence, also need it. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.07 p.m.]: The Government does not accept this amendment. In fact it has no legal effect because the words omitted and inserted have the same meaning.
Amendment negatived.
Mr IAN COHEN [8.07 p.m.], by leave: I move Greens amendments 4, 13 and 21 in globo:
No. 4 Page 3, schedule 1 [1], proposed section 8. Insert after line 27:
(4) The management plan for a water source that has been classified under section 7 as at risk or subject to stress must contain provisions that have the effect of reducing, by at least 1 per cent for each year that the water source is so classified, the long–term average extraction limit under the plan. Any water saved by reducing the long–term average extraction limit is to be classified as planned environmental water.
No. 13 Page 7, schedule 1 [17], proposed section 45 (1). Insert after line 14:
(c) if the amendment is required to give effect to section 8, or
No. 21 Page 11, schedule 1. Insert after line 5:
[24] section 87 (2) (b1)
Insert after section 87 (2) (b):
(b1) an amendment to a management plan to give effect to section 8, or
The big question this bill fails to address is how to restore our rivers to health. That seems incredible given that our economy and viability as a State and society depend on finding the answer. As I said in my contribution to the second reading debate, that question will be in many minds at the National Water Initiative Meeting of the Council of Australian Governments in Canberra this Friday. While the Government and the Coalition have failed to come up with a solution, once again the Greens have taken the lead. This amendment will ensure that action is taken now to begin restoring to health stressed and at-risk rivers.
The Water Management Act 2000 set the framework to begin classifying rivers as at risk, but the Government has sat on its hands on this most vital provision. There should be a 1 per cent extraction limit each year; that is, the water to be taken for irrigation less the paltry and totally inadequate existing environmental water provisions allocated to the river as planned environmental water. This should continue each and every year until rivers are classified as healthy. How many years it will take will depend on the degree of stress on rivers and it will vary from river to river. In some systems it may take 10 years, and in others it may take 20 years.
If today's announcement by the Victorian Government of a 20 per cent return to the environment is any indication, we are in it for the long haul. Because river health is a right of all people that overrides any property right, the Greens propose that this occur with no compensation payable. The amendments would not exclude further allocations of planned environmental water that could be subject to structural adjustment assistance. I commend the amendments to the Committee.
I would have thought that the Government would acknowledge the extreme importance of this matter. Instead, the Minister decided to send our amendments to the irrigation industry for advice rather than communicate with me—a person with a long history of involvement with environmental issues. I simply ask that members have some consideration for the importance of this issue. I did not necessarily expect that it would be taken seriously by all members of the House, but it is worth placing on the record that, historically, all users of water—particularly the people of western New South Wales—have concerns about conservation issues especially on a continent like ours, which is extremely susceptible to the impacts of greenhouse gases. Minister Costa, who is at the table, has told me many times that he does not regard the impact of greenhouse gases as relevant. Indeed, he describes himself as a greenhouse sceptic. However, I think history will confirm the extreme importance of these amendments. They clearly set Minister Knowles apart from reasonable forward thinking with regard to environmental strategy on the part of a government that, when it is politically expedient, regularly touts its environmental credentials. I commend Greens amendments Nos 4, 13 and 21 to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.12 p.m.]: The Government does not accept Greens amendments Nos 4, 13 and 21. The effect of amendment No. 4 would be to require a 1 per cent reduction each year in extraction from stressed water sources. This would compromise the established process for the review of plans and override any consideration of social and economic impacts.
The effect of amendment No. 13, in conjunction with amendment No. 21, would be to allow water-sharing plans to be amended to change the environmental water provisions without any compensation ever being claimable. This pre-empts the risk management debate that is currently occurring at a national level. The effect of amendment No. 21, in conjunction with amendment No. 13, would be to allow water-sharing plans to be amended to change the environmental water provisions without any compensation being claimable. Again, this pre-empts the risk management debate that is currently occurring at a national level.
The Hon. RICK COLLESS [8.13 p.m.]: The amendments concern me greatly because they are totally open ended. They provide for a 1 per cent reduction in extraction each year, without a cap. They do not state a time at which the at-risk provision no longer applies, so it becomes a rather subjective assessment of river health. If the amendments were to be adopted, we could end up with a 100 per cent reduction in extraction each year, and individual rivers still may not get back to pristine condition. Because of their open-ended nature the Opposition does not support the Greens amendments.
Mr IAN COHEN [8.14 p.m.]: I note the position taken by the Government and Opposition to these amendments. I ask the Government to indicate whether it believes New South Wales rivers are critically at risk at present. If the Government concedes that the health of New South Wales rivers is at risk, perhaps it could briefly describe its solution for dealing with what I and the conservation movement understand to be rivers under severe stress.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.15 p.m.]: The bill reflects the balance that must be applied between the needs of industry and the environmental movement.
Question—That the amendments be agreed to—put.
The Committee divided.
Ayes, 5
| Mr Breen
Mr Cohen
Ms Rhiannon
Tellers,
Dr Chesterfield-Evans
Ms Hale | |
Noes, 26
Mr Burke
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Mr Colless
Mr Costa
Ms Cusack
Mrs Forsythe
Miss Gardiner | Mr Gay
Ms Griffin
Mr Jenkins
Mr Kelly
Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Obeid
Ms Parker | Mrs Pavey
Mr Pearce
Ms Robertson
Mr Tingle
Mr Tsang
Mr West
Tellers,
Mr Harwin
Mr Primrose |
Question resolved in the negative.
Amendments negatived.
Mr IAN COHEN [8.21 p.m.]: I move Greens amendment No. 5:
No. 5 Page 3, schedule 1 [1], proposed section 8. Insert before line 28:
(4) A management plan must contain provisions that have the effect of classifying as planned environmental water such percentage of the water available under a licence as a result of savings made by the carrying out of a water efficiency project as corresponds to the percentage of the money spent on the project that is public money.
Both State and Federal governments are now realising that the state of our rivers requires huge investment. This amendment ensures that where public money is used to fund water efficiency projects, water saved as a result will be allocated as planned environmental water in proportion to the percentage of public moneys that contributed to the project. I commend the amendment to the House.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.22 p.m.]: The Government does not support the amendment. The effect of this amendment would require all water saving arising from government funding to become environmental water. This does not allow sufficient flexibility to accommodate other needs such as a rural restructuring and Aboriginal requirements.
Mr IAN COHEN [8.22 p.m.]: I would just like to say that, conversely, it means that if water is saved under the regime proposed by the Government, through water saving technologies and adjustments, why would industrial users of water, or those in the agricultural sector, give the water back to the environment? They would expand their production, and that is what is going to happen.
Amendment negatived.
Mr IAN COHEN [8.23 p.m.]: I move Greens amendment No. 6:
No. 6 Page 5, schedule 1. Insert after line 3:
[11] section 20 (5)
Insert after section 20 (4):
(5) The water sharing provisions of a management plan do not have effect unless they contain environmental water rules.
This amendment ensures that environmental water is part of every water-sharing plan. This amendment enshrines the outcome that the Water Management Act 2000 was meant to achieve in line with the Council of Australian Governments [COAG] water reform principles, that is, irrigators get greater security and certainty in respect of water rights and environmental flows are defined, protected and delivered. The Greens believe that where extraction occurs, the environmental needs of the ecosystem must be defined in environmental water rules to ensure the long-term sustainability and health of the water source, be it a river or a groundwater system. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.24 p.m.]: The Government does not support this amendment. The amendment is not required. Environmental water rules are already mandatory requirements of water-sharing plans under sections 8 and 20.
Amendment negatived.
Mr IAN COHEN [8.24 p.m.]: I move Greens amendment No. 7:
No. 7 Page 5, schedule 1 [14], lines 18–20. Omit all words on those lines.
This amendment maintains the five-yearly review of water-sharing plans. The current Water Management Act has strong provisions that any review should determine whether the provisions of the plan remain adequate and appropriate for ensuring the effective implementation of the water management principles. The bill weakens this review for water-sharing plans and changes the review process from five-yearly to 10-yearly. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.25 p.m.]: The Government does not support this amendment. The effect of the amendment would be to require an unnecessary duplication of the mid-term review function to be undertaken by the Natural Resources Commission.
Amendment negatived.
Mr IAN COHEN [8.25 p.m.]: I move Greens amendment No. 8:
No. 8 Page 6, schedule 1 [16], proposed section 43A (2), line 10. Omit "More. Insert instead "However, not more".
This amendment ensures that a 10-year management plan can be extended only once, that is a total of 20 years, before there is another opportunity for public and stakeholder input and judicial review. In my contribution today we heard from 11 people who put in years on water management committees and who have been embittered at how their genuine efforts were thwarted by a department with an agenda. I believe the situation is quite obscene that those plans—initially drafted for five years because of the complete paucity of environmental information, then extended to 10 against the wishes of many committee members—can be extended over and over again by the two major parties to shut out the public view and legal redress. I commend the amendment to the Committee as a basic control over the continuing mismanagement of our water resources by the extension of these management plans.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.26 p.m.]: The Government does not support this amendment. The effect of the amendment would be to restrict the number of extensions of the water-sharing plan to only one, irrespective of whether it continues to be effective and appropriate.
Amendment negatived.
Mr IAN COHEN [8.27 p.m.]: I move Greens amendment No. 9:
No. 9 Page 6, schedule 1 [16], proposed section 43A (3) (b), line 23. Omit all words on that line. Insert instead:
(b) the extent to which the provisions of the plan remain adequate and appropriate for ensuring the effective implementation of the objects and water management principles of this Act, any State Water Management Outcomes Plan in force under section 6, the vision, objectives, strategies and performance indicators of the plan itself and any relevant catchment action plans within the meaning of the Catchment Management Authorities Act 2003,
(c) whether changes to the water sharing provisions were warranted.
This amendment strengthens the proposed Natural Resources Commission review of water-sharing plans to ensure review provisions similar to those in the current Act, that is that a review determine whether the provisions of the Act remain adequate and appropriate for the effective implementation of the Act. The Government proposes a review against relevant statewide standards and targets. As these have not yet been developed it is not possible to determine if this is an adequate provision. The Greens are of the view that any provision should not be limited by this provision and should clearly be able to assess a plan not only against both the objectives and water management principles of the Water Management Act, but also against the State Water Management Outcomes Plan.
The State Water Management Outcomes Plan was meant to be used to develop the water-sharing plans, but it was gazetted only at the end of 2002 when all the water-sharing plans had been finalised—another example of the fatal flaws in the current water-sharing plans. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.29 p.m.]: The Government does not accept this amendment. The amendment is unnecessary as the Act already requires that water-sharing plans must always be consistent with the State Water Management Outcome Plan and the water management principles of the Act.
Amendment negatived.
Mr IAN COHEN [8.29 p.m.]: I move Greens amendment No. 10:
No. 10 Page 6, schedule 1 [16], proposed section 43A (4), lines 24-31. Omit all words on those lines. Insert instead:
(4) Before providing a report under subsection (3), the Natural Resources Commission:
(a) is to publicly exhibit a draft report for a period of not less than 28 days and to call for public submissions on the draft report, and
(b) is to have regard to any submissions received during that 28-day period or during such longer period as the Commission may allow for the making of submissions, and
(c) is to have regard to any other relevant State-wide and regional government policies or agreements that apply to the catchment management area.
This amendment ensures that the Natural Resources Commission will exhibit for public consultation a draft report for no less than 28 days. The bill allows for public consultation on the water-sharing plan, but provides no information to the public about the performance of the plan on which the public can base comments and fails to specify a minimum period for public submissions. This amendment is simple, cut and dried. It is not particularly controversial. I understand that the Minister is somewhat inconvenienced by having to consider amendments that should not be controversial. The attitude of Minister Knowles, represented ably by Minister Costa in this Chamber, is that of "take no prisoners", whether or not it is a reasonable amendment. Apparently, staff have not had adequate time to consider it. If this amendment causes some degree of consternation, I await with bated breath the explanation of the Minister as to why the Government could not possibly accept it.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.31 p.m.]: The Government does not accept the amendment, and I will ably relay the reasons for that. The effect of the amendment would be to unnecessarily constrain the manner in which the Natural Resources Commission could obtain public input into its review.
Amendment negatived.
Mr IAN COHEN [8.31 p.m.]: I thank the Minister for his explanation of why the Government will not accept the amendment. Providing extra time does not quite gel with the explanation given that somehow it was inadequate, but I will study the situation. My amendment clearly stated no less than 28 days for public consultation. If there were largesse on the part of the Government seeking extra time, amendment No. 10 would dovetail into that degree of governmental generosity with no problem. I do not quite understand the Minister's explanation. It is obviously beyond me at this time. I repeat that amendment No. 10 provides for a draft report to be exhibited for public consultation for no less than 28 days. If it had been more, the situation would be different.
[[ltab]][[ltab]The CHAIRMAN: Order! I do not wish to be draconian but I remind the member that the Committee has already considered amendment No. 10.
Mr IAN COHEN [8.31 p.m.]: I move Greens amendment No. 11:
No. 11 Page 6, schedule 1 [16], proposed section 43A (5), lines 32-36. Omit all words on those lines. Insert instead:
(5) A report of the Natural Resources Commission under subsection (3) is to be made public at least 14 days before the decision of the Minister with respect to the extension of the management plan or on the expiration of 1 month after the report is received by the Minister, whichever first occurs.
This amendment ensures that any report of the Natural Resources Commission on a water management plan is to be made public at least 14 days before any decision by the Minister to extend the plan or after one month of the Minister having received such a report, whichever occurs first. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.33 p.m.]: The Government does not accept the amendment. The effect of the amendment would be to require the Minister to make public reports of the Natural Resources Commission on review of the water-sharing plans before the Government has had the opportunity to make its response to the commission's recommendations.
Amendment negatived.
Mr IAN COHEN [8.33 p.m.]: I move Greens amendment No. 12:
No. 12 Page 7, schedule 1 [16]. Insert after line 6:
(7) Before extending a management plan under this section, the Minister is to obtain the concurrence of the Minister for the Environment.
This amendment ensures that any decision to extend the management plan for a further 10 years must have the concurrence of the Minister for the Environment. The Minister's office has stated that the provision is unnecessary because any decision to extend the plan will be based on a report from the National Resources Commission. The commission has yet to demonstrate its independence from the Minister. Until it does so by its actions, it will be seen by all to be overly open to the Minister's influence and perhaps—and we are yet to see it—to any interests Macquarie Bank may develop in natural resources issues. The amendment simply suggests that the Minister's office have concurrence and be a partner in this vital environmental issue. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.34 p.m.]: Honourable members would note that I am on my best behaviour tonight, but it is very difficult when provocative comments are made about independent businesses. However, I will let it pass. The Government does not support this amendment. The amendment is unnecessary as the Minister for the Environment concurs with the plan when it is first made and any extension of the plan does not involve changing it.
The Hon. RICK COLLESS [8.35 p.m.]: The Opposition also opposes the amendment. We have a problem with the Minister for the Environment concurring with any of the management planning processes under the Water Act.
Mr Ian Cohen: You just have a problem with the Minister for the Environment.
The Hon. RICK COLLESS: That is absolutely correct. It is already in the bill and we examined the section in deciding whether to withdraw new section 45 (3), which states:
Before amending a management plan, the Minister must obtain the concurrence of the Minister for the Environment to the amendment.
I have a problem with that new section as well, so there is no way in the world that the Opposition will support an amendment to give the Minister further power in the water management planning process.
Amendment negatived.
Mr IAN COHEN [8.36 p.m.]: I move Greens amendment No. 14:
No. 14 Page 7, schedule 1 [17], proposed section 45 (1) (c), line 16. Omit "the Land and Environment Court'" Insert instead "a court".
This amendment allows the Minister to amend a management plan in response to a decision in any court, not just the Land and Environment Court. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.37 p.m.]: The Government does not accept this amendment. The effect of this amendment, in conjunction with amendment No. 19, would be to allow a countless range of potential appeals on water-sharing plans in any court and require ongoing changes arising from court decisions. This would not give any confidence that the plans may be implemented once the appeals time frame had concluded.
Amendment negatived.
Mr IAN COHEN [8.37 p.m.]: I move Greens amendment No. 15:
No. 15 Page 7, schedule 1 [17], proposed section 45 (5), lines 33 and 34. Omit "(other than a management plan that deals with water sharing)".
The Minister should have the power to repeal any water management plan, including a water-sharing plan. This would, of course, occur only in extraordinary circumstances but it may be that a prolonged drought could create such a set of circumstances. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.38 p.m.]: The Government does not support the amendment. The effect of the amendment would be to allow the Minister to repeal the water-sharing plans at any time, which would conflict with the scheme for extending or remaking these plans, established in other provisions of the bill.
Amendment negatived.
Mr IAN COHEN [8.38 p.m.]: I move Greens amendment No. 16:
No. 16 Page 8, schedule 1 [17], proposed section 45. Insert after line 9:
(9) Despite any other provision of this section, the Minister must not amend a management plan under subsection (1) (a) or (b) unless the Minister has undertaken public consultation on the amendment in accordance with the procedures set out in Division 8 in relation to the making of management plans.
This amendment ensures that before a Minister can amend a water management plan, a public consultation process must be undertaken. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.39 p.m.]: The Government does not accept this amendment. The effect of the amendment would be to require every amendment of a water-sharing plan, irrespective of its potential effect, to be subject to a public consultation process. This would be a gross waste of public resources.
Amendment negatived.
Mr IAN COHEN [8.39 p.m.]: I move Greens amendment No. 17:
No. 17 Page 8, schedule 1 [18], proposed section 47 (2), lines 28 and 29. Omit all words on those lines.
This amendment ensures that if a water plan is extended for a further 10 years, a judicial review period applies. The Minister, despite statements to the contrary, is constantly trying to curtail both public consultation and judicial review. Plans designed for five years are now being applied for 10 years. Surely, a judicial review period is necessary at this time. I commend the amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.39 p.m.]: The Government does not accept this amendment, the effect of which would be to allow a judicial review period when a water-sharing plan is being extended. This is unnecessary as the plan is not being changed in any manner, and its extension has been recommended by the independent Natural Resources Commission.
Amendment negatived.
Mr IAN COHEN [8.39 p.m.]: I move Greens amendment No. 18:
No. 18 Page 8, schedule 1 [18], proposed section 47 (3), lines 30–32. Omit all words on those lines.
This amendment would allow the Land and Environment Court to extend the judicial review period when it deems it appropriate. This is currently the case, and the bill attempts to limit this judicial power. I commend Greens amendment No. 18.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.40 p.m.]: The Government does not accept this amendment, the effect of which would be to allow a three-month judicial review period for water-sharing plans to be extended. This would remove the certainty that is needed for implementation of these plans once the appeal period is finalised.
Amendment negatived.
Mr IAN COHEN [8.40 p.m.]: I move Greens amendment number 19:
No. 19 Page 9, schedule 1 [18], proposed section 47 (5)-(7), lines 5-20. Omit all words on those lines.
This amendment would remove all the privative clauses which the Government has inserted to reduce or limit any court actions, such as actions in tort. Given the extraordinarily bad history of the New South Wales Government in relation to delivering water of consistent quality or quantity, the New South Wales Greens believe that civil actions should be able to be pursued in courts other than the Land and Environment Court. I commend Greens amendment No. 19.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.41 p.m.]: The Government does not accept this amendment. The effect of this amendment, in conjunction with amendment No. 14, would be to allow a countless range of potential appeals on water-sharing plans in any court, and would require ongoing change arising from court decisions. This would not give any confidence that plans would be implemented once the appeals time frame has concluded.
Amendment negatived.
Mr IAN COHEN [8.42 p.m.]: I move Greens amendment No. 20:
No. 20 Page 10, schedule 1 [19], lines 11-17. Omit all words on those lines. Insert instead:
(2A) Part 3 (except sections 15, 37, 39 (2) and (3) and 40) applies to a Minister's plan.
Almost all plans to date have been the Minister's plans. This amendment would ensure that when the Minister makes a plan, as opposed to a water management committee, the Minister must continue to abide by the public consultation processes to which a plan would ordinarily be subject. I commend Greens amendment No. 20.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.42 p.m.]: The Government does not accept this amendment, the effect of which would be to require the full water-sharing plan making procedure, whether the plan is prepared by a committee or by the Minister. That is unrealistic when the plan will cover a large area as every affected person is required to be individually notified. It also would not allow for an urgent response when the need for a plan arises.
Amendment negatived.
[[ltab]][[ltab]The CHAIRMAN: I acknowledge the presence in the gallery of the Mayor of Byron Shire.
Mr IAN COHEN [8.43 p.m.]: I move Greens amendment No. 22:
No. 22 Page 12, schedule 1 [26], proposed section 389A. Insert after line 14:
(2) It is the duty of a catchment management authority to exercise any such functions consistently with the principles of ecologically sustainable development.
This amendment would require catchment management authorities to act consistently with the principles of ecologically sustainable development. This is particularly important as these authorities will have responsibility for determining the releases of environmental water. I commend Greens amendment No. 22 to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.43 p.m.]: The Government does not accept this amendment. The amendment is not required as the principles of ecologically sustainable development apply to all functions under section 3 of the Act, irrespective of who performs them.
Amendment negatived.
Schedule 1 agreed to.
Mr IAN COHEN [8.44 p.m.], by leave: I move Greens amendments Nos 23, 24 and 25 in globo:
No. 23 Page 14, schedule 2 [6], proposed section 325, lines 19 and 20. Omit all words on those lines. Insert instead "The Minister may, by order in writing, direct a landholder, a particular class of landholders or all landholders to take specified measures to ensure that:".
No. 24 Page 14, schedule 2 [6]. Insert after line 36:
(3) An order under subsection (1):
(a) if it relates to a named landholder, takes effect when it is served on the landholder or on a later day specified in the order, or
(b) if it relates to a class of landholders or all landholders, takes effect on the day it is published in the Gazette or on a later day specified in the order.
No. 25 Page 16, schedule 2. Insert after line 23:
[7] section 345 Contravention of certain directions
Omit "on whom a direction under Part 1 is served".
Insert instead "to whom a direction under Part 1 relates".
These amendments expand the clause in the bill to allow the Minister to give directions concerning water wastage to a class or classes of landholders and provides a mechanism for such directions, for example, the Government Gazette. I commend these amendments to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.44 p.m.]: The Government does not accept these amendments. The effect of the amendments would be to apply the guidelines for reasonable use of water for domestic and stock purposes just by order published in the Government Gazette. This is grossly inadequate notice to landholders and occupiers when significant penalties for failure to comply can be imposed.
Amendments negatived.
Schedule 2 agreed to.
Mr IAN COHEN [8.45 p.m.]: I move Greens amendment No. 26:
No. 26 Page 22, schedule 3 [5], proposed section 71J, lines 22-32. Omit all words on those lines. Insert instead "The Minister is to ensure that the information recorded in the Access Register is made available for public inspection free of charge, during ordinary office hours, at the head office of the Department and is published on the Internet by means of the website of the Department."
This amendment ensures public inspection of the access register during ordinary office hours at the department's head office, and that the register is accessible on the Internet on the department's web site. Let us hope that this register does not go the way of the Land Clearing Approval Register, for which this Minister is also responsible. In that case, despite an Act of Parliament that such a register be maintained and publicly accessible, the provision has been ignored so far. I suggest that this simple Greens amendment would provide a degree of transparency and openness to the public without affecting any other workings or mechanisms of rights to water. Basically, it is a transparency issue. Surely if we have open and accountable Government it would have been reasonable for the Minister's office to consider this amendment. I commend Greens amendment No. 26.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.46 p.m.]: The Government does not accept this amendment, the effect of which would be to make available all information on the Water Access License Register without charge. This does not accord with the procedure in relation to the Rural Property Act register, on which this register is based. It is not unreasonable to charge a small fee for the provision of information to cover the costs incurred.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.47 p.m.]: The Government's response to this amendment is disappointing. It does not cost much to put things on the Internet. If we are to have an open society we must have that. The idea is that there is no information without paying, which seems to be the latest economic rationalist approach. If there is a register it should be maintained and it should be public. Now that we have the technology to make it public, with almost no cost, the technology should be used. I was disappointed to hear Mr Ian Cohen say that another register is not being maintained. It seems ridiculous that we must put penalties in an Act to ensure that the Minister complies with it. That is outrageous. Frankly, the Government's commitment to transparency has been poor, and this is another disappointment in the same vein. I do not believe we will get better government in New South Wales until we have transparent government in New South Wales. It is grossly overdue. While I am on my feet I thank Ilona Millar from the Environmental Defender's Office for some of the briefing material I have been using tonight.
Amendment negatived.
Mr IAN COHEN [8.48 p.m.]: I move Greens amendment number 27:
No. 27 Page 23, schedule 3 [5], proposed section 71K, line 8. Insert "within 28 days after the application is made" after "reasons".
This amendment ensures that when a person disputes a ministerial decision in relation to the keeping of the access register the Minister must supply reasons for that decision within 28 days of the person applying for those reasons. The bill does not specify a time period in which reasons shall be given. Even in the House it is difficult to get answers to questions although there is a clear requirement that questions must be answered within a certain period. If there is no specific requirement, it is a significant blockage to transparency. I commend Greens amendment No. 27.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.49 p.m.]: The Government does not accept this amendment. The effect of the amendment would be to require the Minister to supply reasons for any decision in relation to the water access licence register within 28 days. Practically, this would not be necessary as a right of appeal is available under the Act in this time frame.
Amendment negatived.
Schedule 3 agreed to.
Mr IAN COHEN [8.50 p.m.]: I move:
No. 28 Page 49, schedule 4 [9], proposed section 65. Insert after line 14:
(3) The Minister may not make an order under this section that would apply to a water source that has been classified under section 7 as at risk or subject to stress.
This amendment will ensure that the Minister cannot issue more licences for water sources classified as stressed or at risk. The Coalition said in its earlier comments that it did not understand these terms. The Water Management Act provides for rivers to be classified accordingly. Had the environmental provisions of the Act been effective, the State's rivers would by now have been classified accordingly. I commend Greens amendment No. 28.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.51 p.m.]: The Government does not support this amendment. The amendment is unnecessary, as the Minister can only issue new licences to the extent provided in a water-sharing plan.
Amendment negatived.
Mr IAN COHEN [8.51 p.m.]: I move:
Page 50, schedule 4 [13], lines 23-27. Omit all words on those lines.
The Greens are moving that this clause not stand part of the bill. This clause removes the fixed term of an access licence and creates a licence in perpetuity. We believe this provision effectively privatises a public resource and does so to such an extent that all efforts to return sufficient flow to rivers to maintain their health will require enormous taxpayer expenditure. I addressed the issue of perpetual licences extensively during my contribution to the second reading debate. Apart from the problems it creates by entrenching an expectation for water and thus a compensable right, the Greens also believe that this clause is potentially illegal or immoral with respect to native title. As I said earlier, perpetual licences amount to perpetual losses to the Aboriginal people whose rights they affect.
I remind the Minister that the process of water reform was meant to be one of balance. I see nothing in the bill of substance for the environment, yet irrigators are being handed a right to about 80 per cent of New South Wales water. I have had a number of discussions with Aboriginal community groups and representatives. They are extremely upset with this Government's moves to take away their rights to cultural flows of this river, the very essence of their belief systems and the survival of the community, both spiritually and socially. I believe that perpetual lease rights will be challenged in court with respect to native title. It would be appropriate at this point for the Government to give it serious consideration. My expectations are not high. The Government has used poor excuses not to discuss amendments. The Greens believe the central issue, the central offence of this bill, is the issuing of perpetual water rights.
I understand that the Government used an excuse not to discuss the amendments in open debate in the Legislative Assembly. Perhaps the Government is worried it will lose. It is interesting that issues of natural environment, which are of such importance, are being debated in this Chamber. It is so divorced from the environment that we end up with this level of debate, which is rather concerning but not unusual. It is typical of the Minister, who has been driving this legislation. It makes a mockery of the so-called green credentials of the New South Wales Labor Government. Having said that, I commend this additional amendment to the Committee.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [8.55 p.m.]: The Government does not accept this amendment. It is what can be described as a poison pill amendment. As the honourable member has already outlined, it seeks to defeat the whole bill. It would make the bill unworkable. In particular, it defeats the security contained in the bill. It would defeat the perpetual licences and undermine the whole purpose of the bill.
Question—That the amendment be agreed to—put.
The Committee divided.
Ayes, 5
Page: 9938
| Mr Breen
Dr Chesterfield-Evans
Mr Cohen
Tellers,
Ms Hale
Ms Rhiannon | |
Noes, 27
Mr Burke
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Mr Colless
Mr Costa
Ms Cusack
Mr Egan
Mrs Forsythe
Miss Gardiner | Mr Gay
Ms Griffin
Mr Jenkins
Mr Kelly
Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Obeid
Ms Parker
Mrs Pavey | Mr Pearce
Ms Robertson
Mr Tingle
Mr Tsang
Mr West
Tellers,
Mr Harwin
Mr Primrose |
Question resolved in the negative.
Amendment negatived.
Mr IAN COHEN [9.03 p.m.], by leave: I move Greens amendments Nos 29 and 34 in globo:
No. 29 Pages 50 and 51, schedule 4 [14], line 28 on page 50 to line 3 on page 51. Omit all words on those lines.
No. 34 Page 57, schedule 4 [27], lines 12–16. Omit all words on those lines.
These amendments facilitate the interstate trading of water, which the Greens do not support. We seek their deletion from the bill. I commend amendments Nos 29 and 34.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.03 p.m.]: The Government does not support Greens amendments Nos 29 and 34. The effect of Greens amendment No. 29 would be to remove an effective tool for enabling water trading between licensed holders in different States consistent with the national water initiative. The effect of Greens amendment No. 34 would be to interfere with efficient water trading by preventing water taken under a licence in one State from being used for an approved purpose in another State.
Amendments negatived.
Mr IAN COHEN [9.04 p.m.]: I move Greens amendment No. 30:
No. 30 Page 51, schedule 4 [15], lines 12–15. Omit all words on those lines. Insert instead:
(5) The Minister may deal with an access licence surrendered under this section but only for the purpose of promoting fundamental ecosystem health, for other environmental purposes or for emergency urban domestic purposes (other than commercial purposes).
(6) Without limiting subsection (5), the Minister may transfer an access licence surrendered under this section to a catchment management authority or other public body so long as the Minister imposes a condition on the licence to the effect that the water credited from time to time to the licence must be used for environmental purposes.
This amendment prevents the Minister from dealing in access licences unless it is for environmental or urban domestic purposes. It also allows the Minister to transfer an access licence to a catchment management authority or other public authority if the water credited to the licence is used for environmental purposes. I commend Greens amendment No. 30.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.05 p.m.]: The Government does not accept this amendment. The effect of the amendment would be to remove the power of the Minister to deal with a licence except for environmental purposes. This ignores moneys that may be outstanding in respect of the licence and possible interests of security holders, such as banks.
Amendment negatived.
Mr IAN COHEN [9.05 p.m.]: I move Greens amendment No. 31:
No. 31 Page 52, schedule 4 [18], line 22. Insert ", except in relation to any part of the period for which the licence is suspended that exceeds 6 months" after "licence".
This amendment stops a suspended licence from accruing water entitlements where the period of the suspension is for more than six months. I commend Greens amendment No. 31.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.05 p.m.]: The Government does not accept this amendment. The effect of the amendment would be to prevent water accruing to a licence where it has been suspended for more than six months. This could substantially affect its value as an asset and ignores the rights of any security interest holders.
Amendment negatived.
Mr IAN COHEN [9.06 p.m.]: I move Greens amendment No. 32:
No. 32 Page 54, schedule 4 [22], proposed section 85 (3), lines 19 and 20. Omit "subsequently in accordance with the directions of the Minister". Insert instead "within the following 12 months".
This amendment ensures that where the Snowy hydro scheme has allowed an early release of water that water must be debited from its allocation within the following 12 months. The Government proposed to leave such arrangements to ministerial discretion, which could see water taken regularly but only repaid at a fraction over many years. This could undermine the return of environmental water to the Snowy River. I commend Greens amendment No. 32.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.06 p.m.]: The Government does not accept this amendment. The effect of the amendment would be to constrain payback of borrowed Snowy water to within 12 months, which would not be possible in droughts spanning, for example, more than one year.
Amendment negatived.
Mr IAN COHEN [9.07 p.m.]: I move Greens amendment No. 33:
No. 33 Page 55, schedule 4 [22], proposed section 85A (7), lines 29–32. Omit all words on those lines.
This amendment removes the capacity for ministerial directions allowing access to uncontrolled flows to override all provisions of the Act and plans. The intention of the section, we have been informed by the Government, is to encourage the conversion over time of supplementary water licences to general and high security licences. The New South Wales Greens do not quibble with the intention, just with subsection (7), which effectively removes access to uncontrolled flows from the planning provisions of the Act. Allowing access to uncontrolled flows may reduce the amount of water that reaches lower sections of rivers. This section also fails to provide for environmental allocations, while creating greater security to holders of water licences. I commend Greens amendment No. 33.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.08 p.m.]: The Government does not accept this amendment. The effect of the amendment would be to remove the ability of the Minister to give licence holders access to uncontrolled flows consistent with the provisions of several water-sharing plans.
Amendment negatived.
Mr IAN COHEN [9.08 p.m.], by leave: I move Greens amendments Nos 35, 36, 39 and 40 in globo:
No. 35 Page 58, schedule 4. Insert after line 4:
[31] Section 95 (2A)
Insert after section 95 (2):
(2A) The Minister must refuse to grant an approval if the Minister is of the opinion that the granting of the approval will cause material harm to the environment.
No. 36 Page 58, schedule 4. Insert before line 5:
[31] Section 95 (6)
Insert after section 95 (5):
(6) For the purposes of this section:
(a) harm to the environment is material if:
(i) it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
(ii) it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and
(b) loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment.
No. 39 Page 60, schedule 4 [32], proposed section 105 (4). Insert after line 16:
(b) in the case of a water use approval, the Minister is of the opinion that the granting of the extension will cause material harm to the environment, or
No. 40 Page 60, schedule 4 [32], proposed section 105 (5), lines 22–26. Omit all words on those lines. Insert instead "If an assessment of an application for an extension of an approval (the original approval) is required, the provisions of this Part apply to the application, and the application is to be assessed (including, where relevant, in accordance with Part 5 of the Environmental Planning and Assessment Act 1979), as if the application were an application for the granting of a new approval to authorise:".
These amendments ensure that the Minister must refuse to grant or extend an approval if it is likely to cause material and environmental harm. The definition of "material harm" is also provided as per the Protection of the Environment Operations Act—an Act that I was pleased to support during the time of this Parliament. I commend Greens amendments Nos 35, 36, 39 and 40.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.10 p.m.]: The Government does not support these amendments. Their effect would be to introduce an entirely new test to be used in determining an approval application. The current test of minimal harm it is more rigorous and a substantial implementation process has already been developed. There is no reason to prefer this test, which is borrowed from another piece of legislation.
Amendments negatived.
Mr IAN COHEN [9.11 p.m.]: I move:
No. 37 Page 59, schedule 4 [32], proposed section 104 (5) (b), line 25. Omit "an approval". Insert instead "the approval within 3 months after its expiry".
The bill allows the Minister to extend an approval that has previously expired. This amendment places a limit of three months on this power; that is, the Minister will be able to extend the expired approval only if application is made within three months of the expiry date. I commend the amendment.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.11 p.m.]: The Government does not accept this amendment. Its effect would be to constrain the Minister's ability to accept late applications to extend approvals when mitigating circumstances apply.
Amendment negatived.
Mr IAN COHEN [9.12 p.m.]: I move:
No. 38 Page 60, schedule 4 [32], proposed section 105 (2), lines 1–4. Omit all words on those lines. Insert instead:
(2) The period for which an approval has effect may be extended only once under this section for a further period not exceeding 10 years.
The bill allows for approvals to be extended indefinitely. This amendment ensures that approvals can be extended only for a further 10 years, or in the case of a major or local water utility for a further 20 years.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.12 p.m.]: The Government does not accept this amendment. Its effect would be to limit the period of extension of an approval for only 10 years. That would be a gross waste of resources. The majority of water supply works and uses cause no harm to the environment and can be safely extended without full assessment processes.
Amendment negatived.
Mr IAN COHEN [9.13 p.m.]: I move:
No. 41 Page 60, schedule 4, proposed section 105. Insert after line 36:
(6) For the purposes of this section:
(a) harm to the environment is material if:
(i) it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
(ii) it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and
(b) loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment.
This amendment ensures that all approvals, including renewals, are subject to the proper environmental assessment where necessary. It may be that other management and planning decisions taken in relation to the catchment or further science shows that what was considered acceptable when the initial approval was granted is no longer acceptable. I commend the amendment.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.13 p.m.]: The Government does not accept this amendment for reasons made clear in respect of a number of amendments; that is, the process embedded in the Act is rigorous and there is no reason to prefer a test borrowed from another piece of legislation.
Amendment negatived.
Schedule 4 agreed to.
Schedules 5 and 6 agreed to.
Mr IAN COHEN [9.14 p.m.]: I move:
No. 42 Page 106, schedule 7.1 [4], proposed section 30A (1) (c), line 30. Insert "public" before "works".
The Environmental Water Trust should in the first instance be carrying out public works to conserve water, particularly because it will be using taxpayers' money. The bill contains no provision to ensure that when public money is used to achieve water savings those savings are returned to the environment. Greens amendment No. 5 is also designed to remedy this situation. As I said earlier, in many cases water saving would lead to expansion of agricultural activity with potentially no consideration for the environment. This amendment simply hypothecates the water to the protection of the environment and would be a small step to guarantee protection by ensuring environmental flows. I commend the amendment.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.15 p.m.]: The Government does not accept this amendment. Its effect would be to require environmental water trust funds to be expended on public works only. That ignores the water savings that can be achieved through co-operative agreements between governments and landholders.
Amendment negatived.
Mr IAN COHEN [9.16 p.m.]: I move:
No. 43 Page 107, schedule 7.1 [4], proposed section 30A. Insert after line 21:
(6) An authority is to ensure, as far as is reasonably practicable, that amounts expended from an Environmental Water Trust Fund established by it are expended in the most cost effective way so as to achieve the maximum benefit to the environment.
This amendment ensures that as far as is reasonably practicable environmental water trust funds are to be expended to achieve maximum benefit for the environment. I commend the amendment.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.16 p.m.]: The Government does not accept this amendment. It is unnecessary because the bill makes catchment management authorities accountable to demonstrate the success of their use of environmental water trust funds.
Amendment negatived.
Mr IAN COHEN [9.17 p.m.]: I move:
No. 44 Page 109, schedule 7.3. Insert after line 5:
[3] Section 20 Class 4—environmental planning and protection and development contract civil enforcement
Insert at the end of section 20 (3) (a):
Water Management Act 2000.
This amendment adds the Water Management Act to civil proceedings and it does not limit action to the Land and Environment Court. The amendment enables action to occur in other jurisdictions, for example, on negligence. I commend the amendment.
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.17 p.m.]: It gives me great pleasure to reject the final Greens amendment. The Government does not accept this amendment. Its effect would be to give additional powers to the Land and Environment Court in respect of judicial review. That is not required because the bill limits judicial review only in respect of plan making; it does not interfere with the existing right to review any aspects of the legislation's implementation.
Mr IAN COHEN [9.18 p.m.]: It gives me even greater pleasure to say that the Greens will call for a division on the third reading to make it clear where we stand on this legislation. History will show that the major parties have banded together with very little difference in philosophy. It will also show that the Greens have mounted a strong and constructive argument for the benefit of the environment, producers and water users in New South Wales.
Amendment negatived.
Schedule 7 agreed to.
Title agreed to.
Bill reported from Committee without amendment and report adopted.
Third Reading
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [9.18 p.m.]: I move:
That this bill be now read a third time.
The House divided.
Ayes, 25
Mr Burke
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Mr Colless
Mr Costa
Ms Cusack
Mr Egan
Ms Fazio | Mrs Forsythe
Miss Gardiner
Mr Gay
Ms Griffin
Mr Jenkins
Mr Kelly
Mr Lynn
Reverend Dr Moyes
Reverend Nile | Ms Parker
Mrs Pavey
Mr Pearce
Mr Tingle
Mr West
Tellers,
Mr Harwin
Mr Primrose |
Noes, 5
| Mr Breen
Mr Cohen
Ms Rhiannon
Tellers,
Dr Chesterfield-Evans
Ms Hale | |
Question resolved in the affirmative.
Motion agreed to.
Bill read a third time.
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