Landmark Rocky Hill ruling could pave the way for more courts to choose climate over coal



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A favourite argument of coal proponents is the idea that if their mine is knocked back, someone else will simply dig up coal elsewhere.
Mister Mackenzie/Wikimedia Commons, CC BY-SA

Justine Bell-James, The University of Queensland

On Friday, Chief Judge Brian Preston of the New South Wales Land and Environment Court handed down a landmark judgement confirming a decision to refuse a new open-cut coal mine near Gloucester in the Hunter Valley. The proposed Rocky Hill mine’s contribution to climate change was one of the key reasons cited for refusing the application.

The decision has prompted celebration among environmentalists, for whom climate-based litigation has long been an uphill battle.




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Defeating a mining proposal on climate grounds involves clearing several high hurdles. Generally speaking, the court must be convinced not only that the proposed mine would contribute to climate change, but also that this issue is relevant under the applicable law.

To do this, a litigant needs to convince a court of a few key things, which include that:

  • the proponent is responsible for the ultimate burning of the coal, even if it is burned by a third party, and

  • this will result in increased greenhouse emissions, which in turn contributes to climate change.

In his judgement, Preston took a broad view and readily connected these causal dots, ruling that:

The Project’s cumulative greenhouse gas emissions will contribute to the global total of GHG concentrations in the atmosphere. The global total of GHG concentrations will affect the climate system and cause climate change impacts. The Project’s cumulative GHG emissions are therefore likely to contribute to the future changes to the climate system and the impacts of climate change.

Other courts (such as in Queensland, where the proposed Adani coalmine has successfully cleared various legal hurdles) have tended to take a narrower approach to statutory interpretation, with climate change just one of numerous relevant factors under consideration. In contrast, Preston found climate change to be one of the more important factors to consider under NSW legislation.

To rule against a coalmine on climate grounds, the court also needs to resist the “market substitution” argument – the suggestion that if the proponent does not mine and sell coal, someone else will. This argument has become a common “defence” in climate litigation, and indeed was advanced by Gloucester Resources in the Rocky Hill case.

Preston rejected the argument, describing it as “flawed”. He noted that there is no certainty that overseas mines will substitute for the Rocky Hill coalmine. Given increasing global momentum to tackle climate change, he noted that other countries may well follow this lead in rejecting future coalmine proposals.

He also stated that:

…an environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact.

What does the future now hold?

There should be no doubt that this is a hugely significant ruling. However, there are several caveats to bear in mind.

First, there are avenues of appeal. In the absence of a robust legislative framework prohibiting mining operations, it is ultimately up to a court to interpret legislation and weigh up the relevant factors and evidence. The NSW Land and Environment Court has a strong history of progressive judgements, and it is not certain that this example will be followed more widely in other jurisdictions. That said, Preston’s reasoning is firmly grounded in an analysis of the relevant scientific and international context, and should be a highly persuasive precedent.

Second, it is also important to remember that this judgement arose from an initial government decision to refuse the mine, whereas many other legal challenges have arisen from a mining approval.

Finally, climate change was not the only ground on which the mine was rejected. The proposed mine would have been close to a town, with serious impacts on the community.




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Carmichael mine jumps another legal hurdle, but litigants are making headway


Nevertheless, this decision potentially opens up new chapter in Australia’s climate litigation history. Preston’s ruling nimbly vaults over hurdles that have confounded Australian courts in the past – most notably, the application of the market substitution defence.

It is hard to predict whether his decision will indeed have wider ramifications. Certainly the tide is turning internationally – coal use is declining, many nations have set ambitious climate goals under the Paris Agreement, and high-level overseas courts are making bold decisions in climate cases. As Preston concluded:

…an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time… the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.

Indeed, it is high time for a progressive approach to climate cases too. Hopefully this landmark judgement will signal the turning of the tides in Australian courts as well.The Conversation

Justine Bell-James, Senior lecturer, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Murray-Darling report shows public authorities must take climate change risk seriously


Arjuna Dibley, Stanford University

The tragic recent events on the Darling River, and the political and policy furore around them, have again highlighted the severe financial and environmental consequences of mismanaging climate risks. The Murray-Darling Royal Commission demonstrates how closely boards of public sector corporate bodies can be scrutinised for their management of these risks.

Public authorities must follow private companies and factor climate risk into their board decision-making. Royal Commissioner Brett Walker has delivered a damning indictment of the Murray Darling Basin Authority’s management of climate-related risks. His report argues that the authority’s senior management and board were “negligent” and fell short of acting with “reasonable care, skill and diligence”. For its part, the authority “rejects the assertion” that it “acted improperly or unlawfully in any way”.

The Royal Commission has also drawn attention to the potentially significant legal and reputational consequences for directors and organisations whose climate risk management is deemed to have fallen short of a rising bar.




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Damning royal commission report leaves no doubt that we all lose if the Murray-Darling Basin Plan fails


It’s the public sector’s turn

Until recently, scrutiny of how effectively large and influential organisations are responding to climate risks has focused mostly on the private sector.

In Australia it is widely acknowledged among legal experts that private company directors’ duty of “due care and diligence” requires them to consider foreseeable climate risks that intersect with the interests of the company. Indeed, Australia’s companies regulator, ASIC, has called for directors to take a “probative and proactive” approach to these risks.

The recent focus on management of the Murray-Darling Basin again highlights the crucial role public sector corporations (or “public authorities” as we call them) also play in our overall responses to climate change – and the consequences when things go wrong.

Australia’s economy, once dominated by publicly owned enterprises, was reshaped by waves of privatisations in the late 20th century. However, hundreds of public authorities continue to play an important role in our economy. They build and maintain infrastructure, generate energy, oversee superannuation portfolios, provide insurance and manage water resources, among many other activities.

This means that, like their counterparts in the private sector, many face risks associated with climate change. Take Melbourne Water, for instance, a statutory water corporation established to manage the city’s water supply. It will have to contend with increasingly hot summers and reduced rainfall (a physical risk), and also with the risk that government policy in the future might impose stricter conditions on how water is used (a transition risk).

What duties do public authorities owe?

Our new research from the Centre for Policy Development, shows that, at the Commonwealth and Victorian level (and likely in other Australian jurisdictions), the main laws governing officials in public authorities are likely to create similar obligations to those imposed on private company directors.

For instance, a 2013 federal act requires public authority board members to carry out their duties with the degree of “due care and diligence” that a reasonable person would exercise if they were a Commonwealth official in that board position.

The concept of a “reasonable person” is crucial. There is ever-increasing certainty about the human contribution to climate change. New tools and models have been created to measure the impact of climate change on the economy. Climate risks are therefore reasonably foreseeable if you are acting carefully and diligently, and thus public authority directors should consider these risks.

The obligations of public authority directors may, in some cases, go beyond what is required of private company directors. The same act mentioned above requires Commonwealth officials to promote best practice in the way they carry out their duties. While there is still wide divergence in how private companies manage climate change, best practice in leading corporations is moving towards more systematic analysis and disclosure of these risks. Accordingly, a “best practice” obligation places an even higher onus on public sector directors to manage climate risk.

The specific legislation that governs certain public authorities may introduce different and more onerous requirements. For instance, the Murray-Darling Basin Authority’s governing legislation, the Water Act 2007, imposes a number of additional conditions on the authority. This includes the extent to which the minister can influence board decision-making.

Nonetheless, our laws set out a widely applicable standard for public authority directors.

Approaches to better manage public authority climate risks

While some public authorities are already carefully considering how physical and transition climate risks affect their work, our research suggests that standards vary widely.

As with the private sector, a combination of clear expectations for better climate risk management, greater scrutiny and more investment in climate-related capabilities and risk-management frameworks can all play a role in raising the bar. Our research highlights four steps that governments should consider:

  • creating a whole-of-government toolkit and implementation strategy for training and supporting directors to account for climate-risk in decision-making

  • using existing public authority accountability mechanisms – such as the public sector commissioner or auditor general’s office – to more closely scrutinise the management of climate-related financial risks

  • issuing formal ministerial statements of expectations to clarify how public authorities and their directors should manage climate-related risks and policy priorities

  • making legislative or regulatory changes to ensure consistent consideration, management and disclosure of climate risk by public sector decision-makers.




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Company directors can be held legally liable for ignoring the risks from climate change


Measures such as these would set clear expectations for more consistent, sophisticated responses to climate risks by public authorities. However, even without any changes, it should be clear that public authority directors have legal duties to consider climate risks – and that these duties must be taken seriously even when doing so is complicated, controversial or politically sensitive.The Conversation

Arjuna Dibley, Graduate Fellow, Steyer-Taylor Center for Energy Policy and Finance, Stanford University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Aboriginal voices are missing from the Murray-Darling Basin crisis


Bradley J. Moggridge, University of Canberra and Ross M Thompson, University of Canberra

The Murray-Darling crisis has led to drinking water shortages, drying rivers, and fish kills in the Darling, Macintyre and Murrumbidgee Rivers. This has been the catalyst for recommendations for a Royal Commission and creation of two independent scientific expert panels.

The federal Labor party has sought advice from an independent panel through the Australian Academy of Science, while the Coalition government has asked former Bureau of Meteorology chief Rob Vertessy to convene a second panel. Crucially, the first panel contains no Indigenous representatives, and there is little indication that the second panel will either.




Read more:
The Darling River is simply not supposed to dry out, even in drought


Indigenous meaning

Water for Aboriginal people is an important part of survival in the driest inhabited landscape on Earth. Protecting water is both a cultural obligation and a necessary practice in the sustainability of everyday life.

The Aboriginal peoples’ worldview sees water as inseparably connected to the land and sky, bound by traditional lore and customs in a system of sustainable management that ensures healthy water for future generations.

Without ongoing connection between these aspects, there is no culture or survival. For a people in a dry landscape, traditional knowledge of finding, re-finding and protecting water sites was integral to survival. Today this knowledge may well serve a broader vision of sustainability for all Australia.

While different Aboriginal Nations describe this in local ways and language, the underlying message is fundamentally the same: look after the water and the water will look after you.

Native title

In the current crisis in the Darling River and Menindee Lakes, the focus should be on the Barkandji people of western New South Wales. In 2015, the native title rights for 128,000 square kilometres of Barkandji land were recognised after an 18-year legal case. This legal recognition represented a significant outcome for the Barkandji People because water – and specifically the Darling River or Barka – is central to their existence.

Under the NSW Water Management Act, Native Title rights are defined as Basic Landholder Rights. However, the Barwon-Darling Water Sharing Plan provides a zero allocation for Native Title. The Barkandji confront ongoing struggles to have their common law rights recognised and accommodated by Australian water governance regimes.

The failure to involve them directly in talks convened by the Murray Darling Basin Authority and Basin States, and their exclusion from the independent panels, are further examples of these struggles.

Over the past two decades, Aboriginal people have been lobbying for an environmental, social, economic and cultural share in the water market, but with little success.




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It’s time to restore public trust in the governing of the Murray Darling Basin


The modern history of Aboriginal peoples’ water is a litany of “unfinished business”, in the words of a 2017 Productivity Commission report.

In 2010 the First Peoples Water Engagement Council was established to advise the National Water Commission, but was abolished prior to the National Water Commission’s legislative sunset in 2014.

The NSW Aboriginal Water Initiative, tasked with re-engaging NSW Aboriginal people in water management and planning, ran from 2012 until the Department of Industry water disbanded the unit in early 2017. In a 2018 progress report the Murray-Darling Basin Authority described NSW as “well behind” on water sharing plans.

Even after a damning ABC 4Corners report shed light on alleged water theft and mismanagement, the voices of the Aboriginal people of the Murray-Darling Basin were absent.

In May 2018 the federal Labor party agreed to a federal government policy package of amendments to the Basin Plan, including a cut of 70 billion litres to the water recovery target in the northern basin, and further bipartisan agreement for better water outcomes for Indigenous people of the basin.




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While the measures also included A$40 million for Aboriginal communities to invest in water entitlements, a A$20 million economic development fund to benefit Aboriginal groups most affected by the basin plan, and A$1.5 million to support Aboriginal waterway assessments, how worthwhile are they in a river with no water?

The recent crisis emphasises the perpetual sidelining of Aboriginal voices in water management in NSW and beyond. Indigenous voices need to be heard at all levels, with mechanisms that empower that involvement. Indigenous communities continue to fight for rights to water and for the protection of its spirit.The Conversation

Bradley J. Moggridge, Indigenous Water Research, University of Canberra and Ross M Thompson, Chair of Water Science and Director, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Damning royal commission report leaves no doubt that we all lose if the Murray-Darling Basin Plan fails


Jamie Pittock, Australian National University

In the wake of revelations of water theft, fish kills, and towns running out of water, the South Australian Royal Commission into the Murray-Darling Basin has reported that the Basin Plan must be strengthened if there is to be any hope of saving the river system, and the communities along it, from a bleak future.

Evidence uncovered by the Royal Commission showed systemic failures in the implementation of the Murray-Darling Basin Plan. The damning report must trigger action by all governments and bodies involved in managing the basin.

The Basin Plan was adopted in 2012 to address overallocation of water to irrigated farming at the expense of the environment, river towns, Traditional Owners, and the pastoral and tourism industries.

The Commission has made 111 findings and 44 recommendations that accuse federal agencies of maladministration, and challenge key policies that were pursued in implementing the plan.




Read more:
Aboriginal voices are missing from the Murray-Darling Basin crisis


What did the report find?

The commission found that the Basin Plan breached federal water laws by applying a “triple bottom line” trade-off of environmental and socioeconomic values, rather than prioritising environmental sustainability and then optimising socio-economic outcomes.

I and my colleagues in the Wentworth Group of Concerned Scientists provided evidence to the commission from our independent assessment of the Basin Plan in 2017, which the commission’s findings reflect.

Contrary to current government practices, the Commission recommendations include:

  • prioritising environmental sustainability
  • basing the plan on transparent science
  • acquiring more water for the environment through direct purchase from farmers
  • meeting the water needs of the Basin’s 40 Indigenous nations
  • ensuring that state governments produce competent subsidiary plans and comply with agreements to remove constraints to inundating floodplain wetlands
  • addressing the impacts of climate change
  • improving monitoring and compliance of Basin Plan implementation.

Resilience in decline

The Murray-Darling Basin is not just a food bowl. It is a living ecosystem that depends on interconnected natural resources. It also underpins the livelihoods of 2.6 million people and agricultural production worth more than A$24 billion.

The continued health of the basin and its economy depends on a healthy river – which in turns means healthy water flows. Like much of Australia, the Murray-Darling Basin is subject to periods of “droughts and flooding rains”. But over the past century the extraction of water, especially for irrigation, has reduced river flows to a point at which the natural system can no longer recover from these extremes.

That lack of resilience is evidenced by the current Darling River fish kills. More broadly, overextraction risks the health of the entire basin, and its capacity to sustain productive regional economies for future generations.

From the perspective of the Wentworth Group, we support the commission’s main recommendations, including increasing pressure on recalcitrant state governments to responsibly deliver their elements of the plan, and to refocus on the health of the river.

We particularly support recommendations related to the use of the best available science in decision-making, including for managing declining water availability under a changing climate.

We welcome the recommendation to reassess the sustainable levels of water extraction so as to comply with the Commonwealth Water Act. These must be constructed with a primary focus on the environment.

In line with this, the 70 billion litre reduction in environmental water from the northern basin adopted by parliament in 2018 should be immediately repealed. So should the ban on direct buyback of water from farmers for the environment.

We also recognise that the Basin Plan’s water recovery target is insufficient to restore health to the environment and prevent further damage, and would welcome an increase in the target above 3,200 billion litres.




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South Australian Premier Steven Marshall has taken a welcome first step in calling for a Council of Australian Governments meeting to discuss the commission’s findings. Our governments need to avoid the temptation to legislate away the politically inconvenient failings exposed by the commission, and instead act constructively and implement its recommendations.

This is not only a challenge for the current conservative federal government. The Labor side of politics needs to address its legacy in establishing the Murray-Darling Basin Authority and the Basin Plan, as well as the Victorian government’s role in frustrating the plan’s implementation by failing to remove constraints to environmental water flows.

Now, more than ever, we need strong leadership. If the Murray-Darling Basin Plan fails, we all lose.The Conversation

Jamie Pittock, Professor, Fenner School of Environment & Society, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Death by 775 cuts: how conservation law is failing the black-throated finch


April Reside, The University of Queensland and James Watson, The University of Queensland

Nearly 20 years ago, Australia adopted national environmental legislation that was celebrated widely as a balanced response to Australia’s threatened species crisis. In the same year, Queensland introduced its Vegetation Management Act. Together, these laws were meant to help prevent further extinctions.

But have they worked?

A famous finch

We investigated whether these laws had successfully protected the habitat of the endangered southern black-throated finch.

Our study found that, despite being nominally protected under federal environmental law, habitat for the species has continued to be cleared. Just three out of 775 development applications that potentially impacted the endangered southern black-throated finch were knocked back, according to our new research.




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Defining exactly what is habitat for the black-throated finch is tricky – we don’t have oodles of data on their habitat use over time, and the extent of their sightings has declined substantially. But Queensland has excellent vegetation mapping, and we recorded all of the vegetation types in which the southern black-throated finch has been seen.

We then mapped the extent of this habitat in three different time periods: historically; at the advent of the environmental laws (2000); and current day.

Clear danger

We found that most of the black-throated finch’s habitat had been cleared before 2000, mainly for agriculture before the mid-1970s. The black-throated finch hasn’t been reliably seen in New South Wales since 1994 and is listed there as “presumed extinct”.

We looked at all the development proposals since 2000 that were referred to the federal government due to their potential impact on threatened species. 775 of these development proposals overlapped areas of potential habitat for the black-throated finch.

Only one of these projects – a housing development near Townsville – was refused approval because it was deemed to have a “clearly unacceptable” impact to the black-throated finch.

In addition to these projects, over half a million hectares of the cleared habitat were not even assessed under federal environmental laws.

We estimate that the species remains in just 12% of its original range. Yet despite this, our study shows that the habitat clearing is still being approved within the little that is left.

So in theory, Australia’s and Queensland’s laws protect endangered species habitat. But in practice, a lot has been lost.

Critical habitat

The highest-profile development proposal to impinge on black-throated finch habitat loss is Adani’s Carmichael coalmine and rail project. Adani has been given approval to clear or otherwise impact more than 16,000 hectares of black-throated finch habitat, a third of which Adani deemed “critical habitat” But there are four other mines in the Galilee Basin that have approved the clearing of more than 29,000 ha in total of black-throated finch habitat.

But it’s not just the mines. In 2018 the federal government approved clearing of black-throated finch habitat for a housing estate and a sugar cane farm, both near Townsville. Several solar farms have also been proposed that would clear black-throated finch habitat around Townsville.

To further complicate matters, the black-throated finch’s habitat is also threatened with degradation by cattle grazing. The finch needs year-round access to certain grass seeds, so where grazing has removed the seeding part of the grasses, made the ground too hard, or caused the proliferation of introduced grasses such as buffel, the habitat suitability can decrease until it is no longer able to support black-throated finches.

So while they are losing their high-quality habitat to development, a lot of their habitat is being degraded elsewhere.

Heavy cattle grazing degrades habitat for the southern black-throated finch by removing edible grass seeds.
April Reside

The federal government has placed conditions on approved clearing of black-throated finch habitat, often including “offsetting” of any habitat loss. But securing one part of the black-throated finch’s habitat in exchange for losing another still means there is less habitat. This is particularly problematic when the lost habitat is of very high quality, as is the case for Adani’s Carmichael coalmine lease.

Little by little

Our research suggests there is a real danger of the black-throated finch suffering extinction by a thousand cuts – or perhaps 775 cuts, in this case. Each new development approval may have a relatively modest impact in isolation, but the cumulative effect can be devastating. This may explain why a stronger environmental response has not occurred so far.




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Does ‘offsetting’ work to make up for habitat lost to mining?


So how can we prevent the black-throated finch from going extinct? The finch is endangered because its habitat continues to be lost. So its recovery relies upon halting the ongoing loss of habitat – and ultimately, increasing it. Achieving this would require a political willingness to prioritise endangered species protection.

Australia has already lost hundreds of its unique plants and animals forever. In just the last few years, we have seen more mammals and reptiles disappear to extinction. If we continue on our current path, the southern black-throated finch could be among the next to go.The Conversation

April Reside, Researcher, Centre for Biodiversity and Conservation Science, The University of Queensland and James Watson, Professor, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Darling River is simply not supposed to dry out, even in drought



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Puddles in the bed of the Darling River are a sign of an ecosystem in crisis.
Jeremy Buckingham/Flickr, CC BY-SA

Fran Sheldon, Griffith University

The deaths of a million of fish in the lower Darling River system over the past few weeks should come as no surprise. Quite apart from specific warnings given to the NSW government by their own specialists in 2013, scientists have been warning of devastation since the 1990s.

Put simply, ecological evidence shows the Barwon-Darling River is not meant to dry out to disconnected pools – even during drought conditions. Water diversions have disrupted the natural balance of wetlands that support massive ecosystems.

Unless we allow flows to resume, we’re in danger of seeing one of the worst environmental catastrophes in Australia.




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Dryland river

The Barwon-Darling River is a “dryland river”, which means it is naturally prone to periods of extensive low flow punctuated by periods of flooding.

However, the presence of certain iconic river animals within its channels tell us that a dry river bed is not normal for this system. The murray cod, dead versions of which have recently bought graziers to tears and politicians to retch, are the sentinels of permanent deep waterholes and river channels – you just don’t find them in rivers that dry out regularly.

Less conspicuous is the large river mussel, Alathyria jacksoni, an inhabitant of this system for thousands of years. Its shells are abundant in aboriginal middens along the banks. These invertebrates are unable to tolerate low flows and low oxygen, and while dead fish will float (for a while), shoals of river mussels are probably dead on the river bed.

This extensive drying event will cause regional extinction of a whole raft of riverine species and impact others, such as the rakali. We are witnessing an ecosystem in collapse.

Catastrophic drying

We can see the effects of permanent drying around the world. The most famous example is the drying of the Aral Sea in Central Asia. Once the world’s fourth largest inland lake, it was reduced to less than 10% of its original volume after years of water extraction for irrigation.

The visual results of this exploitation still shock: images of large fishing boats stranded in a sea of sand, abandoned fishing villages, and a vastly changed microclimate for the regions surrounding the now-dry seabed. Its draining has been described as “the world’s worst environmental disaster”.




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Humans drained the Aral Sea once before – but there are no free refills this time round


So, what does the Aral Sea and its major tributaries and the Darling River system with its tributary rivers have in common? Quite a lot, actually. They both have limited access to the outside world: the Aral Sea basin has no outflow to the sea, and while the Darling River system connects to the River Murray at times of high flow, most of its water is held within a vast network of wetlands and floodplain channels. Both are semi-arid. More worryingly, both have more the 50% of their average inflows extracted for irrigation.

There is one striking difference between them. The Aral Sea was a permanent inland lake and its disappearance was visually obvious. The wetlands and floodplains of the Barwon-Darling are mostly ephemeral, and the extent of their drying is therefore hard to visualise.




Read more:
It’s time to restore public trust in the governing of the Murray Darling Basin


An orphaned ship in former Aral Sea, near Aral, Kazakhstan.
Wikipedia

All the main tributaries of the Darling River have floodplain wetland complexes in their lower reaches (such as the Gwydir Wetlands, Macquarie Marshes and Narran Lakes). When the rivers flow they absorb the water from upstream, filling before releasing water downstream to the next wetland complex; the wetlands acting like a series of tipping buckets. Regular river flows are essential for these sponge-like wetlands.

So, how has this hydrological harmony of regular flows and fill-and-spill wetlands changed? And how does this relate to the massive fish kills we are seeing in the lower Darling system?




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How is oxygen ‘sucked out’ of our waterways?


While high flows will still make it through the Barwon-Darling, filling the floodplains and wetlands, and connecting to the River Murray, the low and medium flow events have disappeared. Instead, these are captured in the upper sections of the basin in artificial water storages and used in irrigation.

This has essentially dried the wetlands and floodplains at the ends of the tributaries. Any water not diverted for irrigation is now absorbed by the continually parched upstream wetlands, leaving the lower reaches vulnerable when drought hits.

By continually keeping the Barwon-Darling in a state of low (or no) flow, with its natural wetlands dry, we have reduced its ability to cope with extended drought.




Read more:
Why a wetland might not be wet


While droughts are a natural part of this system and its river animals have adapted, they can’t adjust to continual high water caused in some areas by water diversions – and they certainly can’t survive long-term drying.

The Basin Plan has come some way in restoring some flows to the Barwon-Darling, but unless we find a way to restore more of the low and medium flows to this system we are likely witnessing Australia’s worst environmental disaster.




Read more:
It will take decades, but the Murray Darling Basin Plan is delivering environmental improvements


The Conversation


Fran Sheldon, Professor, Australian Rivers Institute, Griffith University, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

It’s time to restore public trust in the governing of the Murray Darling Basin



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Going all the way back: rules for the Murray Darling Basin are in Australia’s constitution.
KnitSpirit/Flickr, CC BY-NC-SA

Jason Alexandra, RMIT University

Fish deaths in the Darling River have once more raised the public profile of incessant political controversies about the Murray Darling Basin. These divisive debates reveal the deeply contested nature of reforms to water policy in the Basin.

It feels like Australia has been here before – algae blooms are not uncommon in these rivers. In 1992, the Darling suffered the world’s largest toxic algal bloom, over 1,000 kilometres long. This crisis became an iconic catalyst, and helped prompt the state and federal governments agreeing to water reforms in 1994.

Hopefully, our current crisis may be an opportunity to shine a strong light on the complexities of governing the Basin, and initiate the meaningful reforms needed to restore public trust.




Read more:
How is oxygen ‘sucked out’ of our waterways?


Forewarned is forearmed

The rivers of the basin are unique and precious. Australia needs high quality and independent science to understand them and guide their management. Unfortunately in 2012 state and federal governments cut three important programs that provided vital research on the Basin’s rivers:

So while yesterday’s announcement of A$5 million funding to a new native fish recovery program is welcome, good science alone is not enough. Good policy processes and robust institutions are needed to apply this information. We cannot continue to ignore expert warnings.

A crisis of trust

Since a 2017 Four Corners program exposed disturbing allegations of water theft and corruption, the media has revealed a host of further probity issues.

These and a plethora of formal inquiries into MDB governance indicates a crisis of trust, legitimacy and public confidence – in short, a loss of authority.

The 2018 federal Senate inquiry documents a litany of concerns, while disturbing evidence given at a South Australian Royal Commission raised substantive doubts about failures to heed the best scientific advice in the development of the Basin Plan.




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Explainer: what causes algal blooms, and how we can stop them


More Commonwealth oversight is not enough

Without doubt pressure is mounting for more reforms. The Senate’s Rural and Regional Affairs Committee and the Productivity Commission have recommended splitting the Murray Darling Basin Authority into two entities – the MDB Corporation and a MDB Regulator – in order to clearly separate the Commonwealth’s regulatory oversight from other roles.

These proposals deserve critical scrutiny. Structural reorganisation can provide an illusion of government action, but can have long-term effects on the efficacy and justice of water governance.

The Murray Darling has a unique place in Australia’s history, environment, economy and culture. Agreements about its governance have their origins in debates leading up to Federation in 1901. Any renegotiation needs to respect the Constitution and the different legal powers of the states and the Commonwealth.

So reform to institutional arrangements need bespoke design. These are the legitimate remit of our discursive democracy. Nonetheless, the OECD’s 12 water governance principles usefully provide guidance about the need for clarity of roles, transparency, effectiveness, efficiency and broad stakeholder engagement.

Current calls for reorganisation focus on clarifying the Commonwealth’s regulatory role, but this is fairly narrow. Reforms are needed at all scales.

The governance challenges in the MDB require modernisation and redesign of arrangements across regional, state and Commonwealth agencies. This includes structuring “constructive tensions” that ensure transparency and accountability. Just like the police don’t control the courts, we need to more clearly define and separate roles in the water sector.

Embracing radical transparency

We need all water agencies to adopt a formal charter of transparency and openness. All state and Commonwealth agencies should open their books to scrutiny, rather than hiding information behind claims of “commercial in confidence” or opaque “freedom of information” processes.

Greater transparency measures should also be a condition of all water licences. It’s entirely feasible to create modern monitoring regimes, using state-of-the art digital metering coupled with annual water-use declarations. These would be similar to tax returns enforced with random audits and satellite verification of areas irrigated. If made publicly available, all interested parties could audit water extractions.

But doubts don’t exclusively focus on irrigators’ compliance. We also need to address the states and their willingness and capability to enforce regulations. Policies of radical transparency could be supported with openly available water data. With digital meters and automated gauging of river flows, we could create a computer platform where anybody could develop river models using real data, in near real-time.

Harnessing the power of citizen involvement, trust and openly sharing information has been a hallmark of Australia’s landcare and natural resource management. This is where we should look for the next generation of governance in the Basin.

Open books means communities, industries, research and educational institutions can all help monitor our institutions and ensure rivers are managed in the public’s interest.




Read more:
Recent Australian droughts may be the worst in 800 years


Finally, droughts should not come as surprise. They are a recurrent feature of the Basin. With climate change, more frequent and intense droughts are predicted. As a nation we can do better than lurching from crisis to crisis each time drought returns.

We need careful deliberation about the institutions that will rebuild public confidence and restore trust in the governing of the Murray Darling. It’s time to develop a 21st century system that is cooperative, transparent and just.The Conversation

Jason Alexandra, PhD candidate, RMIT University

This article is republished from The Conversation under a Creative Commons license. Read the original article.