Murray-Darling Basin Royal Commission Report 29 January 2019 Commissioner Bret Walker SC 29 January 2019 His Excellency the Honourable Hieu Van Le AC Governor of South Australia Government House GPO Box 2373 ADELAIDE SA 5001 Your Excellency In accordance with the letters patent issued to me on 23 January 2018, I enclose my report. I note that I have been able to take account of materials available as at 11 January 2019. Yours sincerely Bret Walker Commissioner Murray-Darling Basin Royal Commission Report Bret Walker SC Commissioner 29 January 2019 © Government of South Australia ISBN 978-0-6484670-1-4 (paperback) 978-0-6484670-2-1 (online resource) Creative Commons Licence With the exception of the South Australian Coat of Arms, any logos and any images, this work is licensed under the Creative Commons Attribution 4.0 International Licence. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ or send a letter to Creative Commons, PO Box 1866, Mountain View, CA 94042, USA. Suggested attribution: South Australia, Murray-Darling Basin Royal Commission, Report (2019). Contents Acknowledgments 1 Terms of Reference 5 Overview 9 Responses to Terms of Reference, Key Findings & Recommendations 45 1. History 77 2. Constitutional Basis of the Water Act 99 3. ESLT Interpretation 127 4. Guide to the Proposed Basin Plan 163 5. ESLT Process 185 6. Climate Change 241 7. The SDL Adjustment Mechanism 285 8. Constraints 347 9. Efficiency Measures & the 450 GL 381 10. Northern Basin Review 427 11. Aboriginal Engagement 465 12. Water Resource Plans 509 13. Environmental Watering & Outcomes 545 14. Interception Activities 587 15. Groundwater 625 16. Compliance & Enforcement 645 17. Governance 681 18. Public Disclosure 705 Appendix 1: Abbreviations 723 Appendix 2: Commission Phases & Contributions 727 Acknowledgments Acknowledgment of Traditional Owners & Aboriginal Nations of the Murray-Darling Basin As the Commissioner, I acknowledge and pay respect to the Traditional Owners and Aboriginal Nations of the Murray-Darling Basin, including Elders past and present. As Commissioner, I recognize the immeasurable history of Aboriginal people, and the past and continuing profound connexion of Traditional Owners with their customary lands and waters on all levels — cultural, social, economic, environmental and spiritual. It is imperative that the cultural authority of Traditional Owners and Aboriginal Nations to speak and care for their Country is respected and listened to. This example of Traditional Owner philosophy was shared with me: Our Lands, Our Waters, Our People, All Living Things are connected. We implore people to respect our Ruwe (Country) as it was created in the Kaldowinyeri (the creation). We long for sparkling, clean waters, healthy land and people and all living things. We long for the Yarluwar-Ruwe (Sea Country) of our ancestors. Our vision is all people Caring, Sharing, Knowing and Respecting the lands, the waters and all living things. (Ngarrindjeri Nation Yarluwar-Ruwe Plan 2006: 5.)1 The damage and depletion of the water resources, ecosystems and biodiversity of the Murray-Darling Basin since European colonisation, and the trauma and dislocation experienced by Aboriginal people, are part of the same story. The necessary work to protect and restore the river systems must go hand in hand with the necessary measures to include Traditional Owners centrally in decision-making about water planning and management. I extend my sincere thanks to the representatives of Traditional Owner groups and Aboriginal Nations who gave generous assistance to my inquiry. Acknowledgments 1 General acknowledgments I am indebted to all persons who took the time to contribute to the work of the Commission, set out and specifically acknowledged at the conclusion of this report. A large group of people went to considerable effort to engage, both in person and in writing with the Commission’s work, and their willingness to give generously of their time and attention is very much appreciated. Special acknowledgments My experience and work as the Royal Commissioner could not have proceeded as it did without the thoroughgoing and splendid support of an excellent staff. Simply, this report and all the work producing it result from their demonstrated capacity and willingness to provide everything I needed, whenever necessary. Responsibility for the contents of the report, including any omissions, is entirely mine. The entire administration of the Commission’s work could not have run as smoothly and energetically as it did, without the leading contribution of Carolyn Lee as Director. The wisdom and energy, and professional leadership, of Joanne Masters, Senior Instructing Solicitor, were indispensable. I was greatly assisted by the insights and contributions of Sarah Avey as Senior Advising Solicitor. The thoughtfulness and intellectual curiosity of Sean O’Flaherty, Junior Counsel Assisting, has played a considerable role in the ability of the Commission to carry out its tasks. It is impossible to overstate the significance to the work of this Commission of the leadership, acumen and inspirational analysis of Richard Beasley SC, Senior Counsel Assisting. I am very grateful for the opportunity to have attempted, with him, to serve the public interest. It would be invidious to name others of the Commission staff, all of whom have excellently exceeded the requirements of their positions. Appendix 2 records the phases of the Commission’s work and designates certain of the contributions to it. 2 Acknowledgments References 1 Ngarrindjeri Regional Authority, Submission to Murray-Darling Basin Royal Commission, 9 May 2018 (RCE 194) 2. Acknowledgments 3 4 Acknowledgments Terms of Reference A. South Australia is a “Basin State” within the meaning of the Water Act 2007 (Cth) (“the Act”), the Basin Plan made under s.44(3)(b)(i) of the Act, and is a party to the Murray-Darling Basin Agreement (“the Basin Agreement”), which forms Schedule 1 to the Act. B. There exist “Water Resource Plan Areas”, as defined in the Basin Plan, within the State of South Australia. The South Australian River Murray forms the downstream area of the Water Resource Plan Areas outlined in the Basin Plan. C. The objects and purposes of the Act and the Basin Plan include, but are not limited to, the following matters: a. ensuring the return to environmentally sustainable levels of extraction for water resources that are over-allocated or over-used; b. to protect, restore and provide for the ecological values and ecosystem services of the Murray-Darling Basin (taking into account, in particular, the impact that the taking of the water has on the water courses, lakes, wetlands, groundwater and water dependent ecosystems that are part of the Basin water resources and on associated biodiversity); c. the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and groundwater that may be taken from the Basin water resources (including by interception activities); d. to give effect to relevant international agreements through the integrated management of Basin water resources; e. to establish a sustainable and long term adaptive management framework for the Basin water resources, that takes into account the broader management of natural resources in the Murray-Darling Basin; f. to optimise social, economic and environmental outcomes arising from the use of Basin water resources in the national interest; g. to achieve certain “enhanced environmental outcomes”. These objects and purposes are more fully outlined in ss.3, 20 and 28 of the Act, chapters 5 and 8 of the Basin Plan, and Schedule 5 of the Basin Plan in relation to enhanced environmental outcomes. Terms of Reference 5 D. The purpose of the Basin Agreement is to promote and co-ordinate effective planning and management for the equitable, efficient and sustainable use of water and other natural resources of the Murray-Darling Basin, including implementing arrangements between the Basin States in order to give effect to the Basin Plan and the Act. E. As a Basin State, as a contracting party to the Basin Agreement, and as the downstream State, which includes the South Australian River Murray Water Resource Plan Area, South Australia has a significant interest in: a. compliance with and the effectiveness of the Basin Plan generally; b. the delivery of Water Resource Plans defined by the Act and Basin Plan in forms compliant and consistent with the Basin Plan by 30 June 2019; and c. the protection and improvement of the environment of the Murray-Darling Basin, which is itself dependent upon the implementation and effective operation of the Basin Plan. F. The South Australian Government is concerned at recent reports as to alleged non-compliance with the Basin Plan, the current state of implementation of the Basin Plan, and whether the Basin Plan will achieve its objects and purposes and those of the Act. It considers that an independent Commission of Inquiry with coercive powers is required to inquire into these and related matters. I, the Governor, with the advice and consent of the Executive Council, DO HEREBY APPOINT YOU to be a Commissioner to inquire into and report upon the following matters: 1. Whether the Water Resource Plans defined by the Act and Basin Plan (which are to include the long-term average sustainable diversion limits for each Basin water resource) will be delivered in full and in a form compliant and consistent with the Basin Plan by 30 June 2019. 2. If any Water Resource Plans are unlikely to be delivered in full and in a form compliant and consistent with the Basin Plan, the reasons for this. 3. Whether the Basin Plan in its current form, its implementation, and any proposed amendments to the Plan, are likely to achieve the objects and purposes of the Act and Plan as variously outlined in ss.3, 20, 23 and 28 of the Act, and the ‘enhanced environmental outcomes’ and additional 450 GL provided for in s.