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Submission 92 3 September 2020 Our ref: HS-WAg National Water Reform 2020 Productivity Commission Locked Bag 2, Collins St East Melbourne VIC 8003, Australia By email: [email protected] Dear Commission, National Water Reform Thank you for the opportunity to provide feedback on the National Water Reform Inquiry. The Queensland Law Society (QLS) appreciates being able to contribute to this important inquiry and is grateful for the additional time allowed to provide this submission. QLS is the peak professional body for the State’s legal practitioners. We represent and promote over 13,000 legal professionals, increase community understanding of the law, help protect the rights of individuals and advise the community about the many benefits solicitors can provide. QLS also assists the public by advising government on improvements to laws affecting Queenslanders and working to improve their access to the law. This response has been compiled by the QLS Water and Agribusiness Committee, whose members are legal practitioner volunteers with substantial expertise in this area. We also enclose Appendix 1, which has been prepared by our committee member Caitlin McConnel and addresses issues related to water policy in the context of broader challenges related to critical human water needs, climate change and national security. QLS commends Ms McConnel’s submission to the Commission for consideration of the issues contained therein. ASSESSING JURISDICTIONAL PROGRESS - INFORMATION REQUEST 1 The Commission welcomes feedback on: whether the signatories to the National Water Initiative (NWI) are achieving the agreed objectives and outcomes of the agreement which elements of the NWI have seen slow progress whether there are cases where jurisdictions have moved away from the actions, outcomes and objectives of the NWI National Water Reform Inquiry any other data and information sources that might be useful for assessing progress. The Issues Paper states that the Commission will assess the progress of all jurisdictions against each of the eight NWI elements and that the Commission’s assessment will primarily focus on changes since the 2017 assessment of progress (2017 Inquiry). Queensland’s progress is considered further below in relation to the following NWI elements: water access entitlement and planning frameworks; water resource accounting; and water markets and trading. Although there remains further work to be done with respect to extractive industries, climate change and Indigenous cultural values, our review indicates that Queensland has continued to improve its delivery of the water planning framework and provide support for the implementation of those plans. Water access entitlement and planning frameworks The 2017 Inquiry recommended the following priorities relevant to Queensland:1 Extractive Industries: State and Territory Governments should ensure that water entitlement and planning arrangements explicitly incorporate extractive industries, including ensuring that entitlements for extractive industries are issued under the same framework that applies to other consumptive users. Climate change: State and Territory Governments should develop a process to regularly assess the impact of climate change on water resources. Where this is considered to have been significant and detrimental, they should ensure that the next water plan review fundamentally reassesses the objectives of the plan and the consequent balance between environmental and consumptive use of water, to ensure it is suited to a drier climate. Indigenous cultural values: State and Territory Governments should ensure that, as water plans reach the end of their planning cycle, review processes are undertaken that allow optimisation of water use and systems across all users, include explicit consideration of Indigenous cultural values, and involve adequate community and stakeholder engagement. Whilst water service delivery was not a key priority for Queensland, the 2017 Inquiry recognised that transfer of existing irrigation distribution networks to local ownership had benefited irrigators in parts of Queensland through improved productivity, accountability, long- term planning and responsiveness to irrigators.2 1 Australian Government Productivity Commission, National Water Reform Productivity Commission Inquiry Report No. 87, 19 December 2017, p 28 <https://www.pc.gov.au/__data/assets/pdf_file/0007/228175/water-reform.pdf>. 2 Ibid 11, 40 Queensland Law Society | Office of the President Page 2 of 33 National Water Reform Inquiry The status of each finding is considered below. Extractive Industries Since the 2017 Inquiry, minimal changes have been implemented by the Queensland Government to ensure extractive industries are issued water entitlements under the same framework applying to other consumptive users. Statutory rights to take or interfere with underground water for extractive industry in Queensland vary depending on whether the take of water is associated water or non-associated water. As noted in the 2017 Inquiry, ‘these rights operate outside of Queensland’s water access entitlements and planning framework’.3 This is undesirable in the view of QLS. Water entitlements should be granted on a transparent basis that is consistent across different types of users. Climate change Since the 2017 Inquiry, the Queensland Government has passed legislation to amend the water planning framework to strengthen climate change considerations by incorporating an explicit requirement for the Minister for Department of Natural Resources, Mines and Energy (DNRME) to consider the effects of climate change when preparing a water plan or water use plan.4 In committee stage of the amending legislation, the DNRME advised the State Development, Natural Resources and Agricultural Industry Development Committee:5 It is critical that Queenslanders have confidence that climate change and its effect on water resources are considered in water planning. It is important to recognise that when we do this work we are not talking about gazing well off into the future. Water plans have 10-year horizons and a ministerial report on the effectiveness of plans is prepared every five years. Should this amendment be accepted by the parliament, water modelling and the preparation of the plan will consider climate change risks only over the lifetime of the plan. The introduction of climate change requirements into water planning will help to align water planning to the Queensland government’s commitment in 2017 via the Queensland Climate Adaptation Strategy.6 Under the Water Act 2000 (Qld) (Water Act), a water plan expires after 10 years unless it is repealed, or the expiry of the plan is postponed on the basis that the Minister for the DNRME is satisfied the plan is advancing the water plan outcomes.7 Of the 23 water plans in place across Queensland, the following water plans include general outcomes regarding climate change: Water Plan (Border Rivers and Moonie) 2019 (Qld): Includes a general outcome to promote improved understanding of the impact of climate change on water availability. 3 Ibid 88. 4 Explanatory Notes, Mineral, Water and Other Legislation Amendment Bill 2018 (Qld) 2-3. 5 State Development, Natural Resources and Agricultural Industry Development Committee, Parliament of Queensland, Inquiry into the Mineral, Water and Other Legislation Amendment Bill 2018 (Parliamentary Report No. 4, April 2018) 32. 6 Queensland Parliament, Public Briefing – Inquiry into the Mineral, Water and Other Legislation Amendment Bill 2018, Transcript of Proceedings (5 March 2018) <https://www.parliament.qld.gov.au/documents/committees/SDNRAIDC/2018/3MinWatOLAB2018/3-trns-ph5Mar2018.pdf>. 7 Water Act 2000 (Qld) s 53(a)-(b), 54(1). Queensland Law Society | Office of the President Page 3 of 33 National Water Reform Inquiry Water Plan (Cape York) 2019 (Qld): Includes a general outcome to promote improved understanding of the impact of climate change on water availability. Water Plan (Condamine and Balonne) 2019 (Qld): Includes a general outcome to promote improved understanding of the impact of climate change on water availability. Water Plan (Cooper Creek) 2011 (Qld): Includes a general outcome to account for modelled impacts of climate change on water availability, including the effects of increased duration of low flow periods and no flow periods, and the effect of increased evaporation rates from waterholes. In recognition of the above, it is unclear how the Queensland Government in the short to medium term will assess the impact of climate change on water resources in circumstances where: a water plan can be extended for a further 10 years under the Water Act; the hydrological modelling underpinning the objectives of first-generation water plans may not incorporate impacts of climate change; and the hydrological modelling underpinning the objectives of second-generation water plans may only contemplate climate change impacts for a period of 10 years – not 20 years. Having regard to the proposed water plan expiry dates in Table 1 below, Queensland’s transition to incorporate the effects of climate change in the water planning framework may not be satisfied until 2031, given the Water Plan (Cooper Creek) 2011 (Qld) is due to expire on 1 September 2031. This longer transition period is a result of the expiry dates of water plans being postponed, which delays the full incorporation of climate change consideration longer than may have been contemplated by the 2017 Inquiry. Table 1. Current and proposed
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