The Nature Conservation Council has launched legal proceedings to have the Border Rivers Water Sharing Plan 2021 ruled invalid, alleging it was made without properly considering the future impacts of climate change. [1] 

It is the first time in Australia — and possibly the world — that a catchment-wide water sharing instrument has been challenged on climate-related grounds. 

The Nature Conservation Council is represented by the Environmental Defenders Office and Brett Walker SC.  

Proceedings are being taken against the Water Minister, who made the Border Rivers WSP, and the Environment Minister, who provided concurrence. 

“We are alleging that the Border Rivers Water Sharing Plan is unlawful because the ministers responsible failed to properly consider the impact climate change is likely to have on the volume of water available to share,” Nature Conservation Council Chief Executive Chris Gambian said. 

“As a consequence, too much water has been allocated for extraction and too little for the environment and downstream communities on the Barwon and Darling-Barka Rivers. 

“Our rivers and the ecosystems they support are in crisis. Whole sections of the river system have completely dried up.  

“The Menindee Lakes until recently were a dustbowl and the Macquarie Marshes and other wetlands across the state are on the brink of ecological collapse.  
  
“This is a challenge for public administrators right now, and we believe the NSW Government has failed in its duty to meet that challenge. 

“Healthy rivers must be our top priority because they are the lifeblood of communities and ecosystems everywhere, especially in the Murray-Darling Basin.    

“If we fail to keep our rivers alive as a first priority, it doesn’t really matter what our second priority is. We will have lost the fight.  

“Climate change is not some abstract phenomenon that may occur in the distant future. River communities in NSW are bearing the brunt of that change every day, right now. 

“Just 18 months ago, many towns in western NSW were entirely dependent of bores or truck deliveries for their water supplies. 

“It is not just prudent for governments to factor in the impacts of climate change. It is a legal requirement that we are seeking to uphold by taking this action. 

“Climate models used to predict climate change and its impacts are sufficiently robust and we claim they must be taken into account in determining the allocation of water.      

“We wish it was not necessary, but when public officials fail to uphold our environmental laws, we have no choice but to act.” 

VIDEO NEWS GRABS 

Nature Conservation Council Chief Executive Chris Gambian.  

REFERENCES 

[1] NSW government faces crucial court challenge to Murray-Darling water plan, The Guardian Australia, 6-10-21 

MEDIA CONTACT: James Tremain | 0419 272 254 

The NSW Government should audit all floodplain harvesting structures and order the removal of any that lack planning approval within 12 months.   

The audit and the compliance blitz are two of the key recommendation the Nature Conservation Council has made to the NSW Legislative Council Select Committee on Floodplain Harvesting.

Opening Statement to the NSW Parliamentary Inquiry into Floodplain Harvesting

By Chris Gambian, Chief Executive Nature Conservation Council of NSW

Thank you, Chair, and thank you to the Committee for the opportunity to say a few words to you this morning. 

 First, may I acknowledge that I am coming to you from Bidgegal country on the northern banks of the Georges River, and I pay my respects to ancestors and elders.  I also pay my respects to the ancestors and elders of the Barkinji nation and all the first nations whose country we will discuss today. 

In the searing heat of December 2019 I walked where the Darling Baarka should have been flowing. 

I remember the eery silence. I remember the stillness of that lifeless place. 

The river bank high on either side of me, I could have walked for miles and not seen a drop of water.  

I’ve walked through rows and rows of rotting citrus orchards. A once viable farm now no longer capable of earning a living for the farmer, nor feeding the rest of us.  

When the pipeline from the Murray was built to service Broken Hill because the Menindee Lakes could no longer be relied upon for town water – or so the story goes – emus could be found dead along its route.  They could smell the water but not access it. 

When I was back in the far west in November 2020, even after rain had come you could still smell the stench of dead fish rotting in the water in Wilcannia.

In the town of Menindee, so central to the story Australia tells itself about the outback, the water stinks. The water we ask our fellow Australians to shower in and brush teeth with and drink, stinks.  

The conservation movement of NSW does not support flood plain harvesting.  

It is a practise so contradictory to the principles of water sharing, so antagonistic to the common good, and so profoundly harmful to the sustainability of the ecosystems on which we all depend, that it should be considered not merely illegal, but anti-social and loathsome. 

The assertion made by some that floodplain harvesting must be licenced before it can be regulated or limited is an obtuse one. 

Imagine if this were the government’s approach in other policy areas? 

We oppose floodplain harvesting but we acknowledge that it is a common practice, and we see merit in creating a realistic regulatory framework for it that gives everyone more certainty. 

NCC has participated in the FPH Review Committee in good faith. However, our representative has been gagged through a Deed of Confidentiality. 

Our organisation has had far less access to agency staff and less direct consultation on FPH than the irrigation industry. 

We have lodged several dissenting reports on the assessment and review process with Mr Jim Bentley, the Deputy Secretary. 

Water policy, perhaps more than most policy areas, is extremely complex.  

You’ll hear that often repeated and will know that from your own experience.  

Indeed, too many people stay away from the important debates in water policy because of this complexity, and the details of the history, data and law have been weaponised to bamboozle and confuse politicians, regulators, stakeholders and the public at large to avoid proper scrutiny. 

For my own part, I have tried to understand the complexity through a simple framework which, if you indulge me, I will share with you.  The three ‘Ms’: 

1. Measurement. This is probably the area where there is the most consensus. We need accurate information about how much water exists in the system, how much is being taken out, by whom, and how much is left. I applaud the government for its efforts to get metres installed across the basin. We need even more measurement. It is critical. 
    
2. Modelling. Once we know how much water is in the system, how much is being taken and from where it is being taken, we can start to create realistic models for allocations. Critically, climate change must be factored into the models.
   
3. And finally, management. Creating a management regime that ensures the proper priority of use is applied. In this case, end of system flow targets that ensure sufficient water is made available for river health and communities, will create a frame work that is both sustainable and predictable. 

Any regulatory framework needs to be realistic. And that realism needs to start with two acknowledgments: 

First, that this is an incredibly dry continent that is getting drier because of climate change. 

And second, that there is not likely to ever be enough water available to do all the things we may want to do with it. We may have ample land, but we do not have ample water. 

It seems to me that this second reality is the hardest one for many people to swallow.  

Moreover, whilst I speak today to advocate for the health of the river and its ecosystems, the environment is not a stakeholder. 

The deal making and horse trading in water politics over the last 20 years has given rise to the fallacy that the environment somehow exists as some kind of interest group that needs to be balanced against other pursuits. 

Without a healthy river, communities die. Agriculture dies. Its survival is our survival. When it thrives, we thrive. 

Lake Menindee is full right now. Life is coming back. I’m dreaming of the joy of swimming in the river again. After lockdown I’m going to get back there. I want my daughters to experience that incredibly special place. Many of you have been. If you haven’t, I hope you go. I hope more people from the east coast go to visit. It changes you. We must protect it. 

Thank you. 

23 June 2021 

The Nature Conservation Council looks forward to contributing to the NSW Upper House inquiry into floodplain harvesting announced today. 

“The inquiry follows the introduction earlier this year of poorly designed regulations that would have transferred billions of dollars’ worth of public water into private hands,” Nature Conservation Council Chief Executive Chris Gambian said. 

“Those floodplain harvesting regulations would also have denied water-dependent wildlife, ecosystems and downstream communities vital water resources just as climate change is really starting to bite in NSW, especially in the Far West. 

“Had they not been disallowed by the NSW Parliament, they would have constituted one of the greatest transfers of natural resources into private hands in Australia’s history. 

“Floodplain harvesting is killing our rivers. It needs to be reined in, not given a blanket exemption.” 

The NSW Legislative Council voted today to establish a select committee into: 

1. the NSW Government’s management of floodplain harvesting, including: 
2. The legality of floodplain harvesting practices;  
3. The water regulations published on 30 April 2021; 
4. How floodplain harvesting can be licensed, regulated, metered and monitored so that it is sustainable and meets the objectives of the Water Management Act 2000 and the Murray-Darling Basin Plan; and  
5. Any other related matters. 

The committee will have three government MPs, three Opposition MPs and two crossbenchers. Greens MLC Cate Faerhman will be chairperson. Shooters, Fishers and Farmers Party MLC Mark Banaziak will be deputy chair. 

Statement by Nature Conservation Council Chief Executive Chris Gambian 

“We welcome Chris Minns’ election as leader of NSW Labor and look forward to working with the new Labor leadership team to put climate action and the protection of nature at the top of the political agenda. 

“The people want an effective Opposition with a comprehensive set of policies to tackle our most urgent environmental issues and force the government to compete for votes in these vital areas of public policy.  

“We hope that the new Labor leadership team can start a race to the top against the Coalition in the critical areas of koala conservation, climate action and the reform of water and forestry management. 

“Labor has an opportunity and a responsibility to come up with a plan to end native forest logging in a way that supports workers into a sustainable plantation-based industry. 

“And Labor must take up the fight on land clearing, especially terrible proposals that would accelerate the extinction crisis for koalas. 

“The Coalition government is taking strong action on the energy transition and national parks, but is getting wrong on water, koalas, logging and land clearing. 

“The new leader must lead on climate action policies that go beyond a just energy sector transition and includes electric vehicles and agriculture. And end the false choice between jobs and a livable climate.  

“Labor must recommit to supporting a healthy Murray-Darling Basin through better water management and flow targets. 

“It must also show leadership on the pressing issue of native forest logging. Our forests and the wildlife they support are dying because of unsustainable logging.” 

The NSW Government must vigorously prosecute landholders who have harvested floodplain waters illegally, and release all the legal advice it has received on the status of floodplain harvesting over the past two years.

Media reports today reveal that Water Minister Melinda Pavey was told months ago that unlicenced floodplain harvesting was illegal under the Water Management Act but kept that advice secret during critical public debates on the issue. [1]

“The Minister not only kept the advice secret, she failed to act upon that advice by introducing measures to stop the continuing theft of massive volumes of water cross large parts of NSW,” Nature Conservation Council Chief Executive Chris Gambian said.

“At the same time, she was busy ramming through regulations that transferred billions of dollars’ worth of publicly-owned water to private landholders in the form of floodplain harvesting licences.

“Fortunately, those regulations and licences were overturned by the NSW Legislative Council, by a cross party group including Justin Field, Labor, Greens, Shooters and Animal Justice.

“But with billions of dollars’ worth of water at stake, you can be sure the irrigator lobby is pressing the Nationals to have another crack.

“This whole episode further undermines public confidence in the administration of water and the government’s ability to balance the needs of the environment and the interests of downstream communities against the incessant demands of irrigators.

“That’s why we need to know what the government was told, and when, regarding this critical matter of public interest before any more changes are made to water laws and regulations in NSW.”

Mr Gambian said the legal advice the Minister had kept secret was a critical piece of information that MPs were not given when casting their votes on the Floodplain Harvesting Regulation disallowance.

“The failure to disclose this critical advice was very favourable to the interests of irrigators because the regulation gifted billions of dollars of water to irrigators who were otherwise not entitled to it

“Any licensing of floodplain water take must guarantee an ecologically sustainable water flows right through to the bottom of the system.

“Anything less will have a devastating impact on river health and downstream farmers and communities.

“The law should be enforced and those landholders who have taken water to which they had not right should be prosecuted.”

[1] NSW labels flood-plain harvesting ‘legal’ but internal advice suggests opposite, SMH, 26-5-21

The Nature Conservation Council urges all candidates in the Upper Hunter by-election to put climate change, air quality, the protection of wildlife habitat, and river health at the top of their agendas.

“Climate change is the number-one economic and environmental challenge facing communities of the Upper Hunter and Liverpool Plains, so all candidates need to make clear what they will do for the region on climate,” Nature Conservation Council Chief Executive Chris Gambian said.

“Any candidate who does not have climate change at the top of their platform is not really representing the true interests of the community.

“All candidates need a plan for meaningful action to cut emissions, and ensure that Hunter communities have a realistic pathway to new economic opportunities in a low carbon economy.

“Change is coming to the Upper Hunter, one way or another. These changes could be very positive, or they could be very negative – it all depends on how our politicians and governments handle it.

“So far, the major parties are putting the Upper Hunter on the road to ruin by refusing to deal frankly with climate change and the decline of the coal industry.

“The coal and electricity generation industries in the Upper Hunter contribute more than any other electorate to climate change in NSW, so it must play a leading role in slashing our state’s emissions.

“It is not fair to expect people in this region to carry the burden of that alone, which is why we are calling on the NSW Government to establish a Community and Industry Transition Fund and Transition Authority.”

Mr Gambian said candidates must also advocate strongly to improve very poor air quality in some parts of the electorate, and support measures to reverse the decline in native bushland and species under threat from logging and land clearing for mines, farming and urban development.

The Nature Conservation Council calls on all candidates to support the following measures:

Support communities

• Use coal royalties to create a multi-billion-dollar Community and Industry Support Fund.
• Establish a Community and Industry Support Authority to collaborate with workers, communities, and industry on Community and Industry Support Plans tailored to different coal communities.

End the expansion of coal and gas

• Stop releasing farmland and wildlife habitat for coal and gas developments.
  Rescind the recent release of land around Rylstone and Wollar for coal exploration.
• Stop issuing coal and gas exploration and mining licences in the Upper Hunter, Liverpool Plains and Central West.
• Ban new coal mines and gas fields.

Improve local air quality

• Set air quality standards in line with world’s best practice and improve air quality monitoring.
• Implement an air-pollution reduction strategy across NSW to improve air quality by slashing emissions.
• Reduce emissions from coal-fired power stations by installing readily available technology, updating pollution licences and improving monitoring.

Protect, restore and reconnect wildlife habitat

• End native-forest logging, a key driver of the decline of koalas and other forest wildlife.
• Stop land-clearing for mining, agriculture and urban development.
• Create a network of revegetated wildlife corridors through the Hunter and Liverpool Plains.
• End the use of biodiversity offsets, except in exceptional circumstances.
• Ban the burning of native forests for electricity and reject the proposed recommissioning of Redbank Power Station to burn forest biomass.

Restore rivers and wetlands

• Mandate environmental flows to keep our rivers healthy.
• Tighten the water-use monitoring regime to end water theft and give certainty to all water users.
• Enforce the law regarding floodplain harvesting, and ensure all floodplain harvesting regulations guarantee sustainable water flow for river health and downstream communities.
• No new dams.

The Nature Conservation Council of NSW is the peak conservation organisation for NSW, representing more than 160 local, regional, state-wide environment organisations.

The NSW Government should protect water supplies, farmland, communities and wildlife in the Far West by immediately ruling out the development of an industrial gas field in the region, according to the NSW Nature Conservation Council.

The government this year resurrected plans to let big fossil fuel companies drill gas wells across millions of hectares of grazing land stretching from Tibooburra in the north to Hillston in the south. [1]

Farmers have reacted angrily to the proposal and the failure of the Department of Infrastructure, Planning and Environment to consult adequately. [2]

“The development of a gas mining industry in the Far West will waste millions of litres of water this region just can’t spare,” Nature Conservation Council Chief Executive Chris Gambian said.

“Gas mining in the west will require fracking, a process that uses vast amounts of water and chemicals to crack the rock to make the gas flow.

“The fossil fuel industry’s own figures show fracking requires about 15 million litres on average for each well, which is enough to fill six Olympic-sized swimming pools. [3]

“If this proposal goes ahead, there could be several hundred wells dotted across the Far West requiring possibly billions of litres of precious water.

“We proudly stand with local farmers and Traditional Owners who utterly oppose fracking on their land.

“It is a cruel irony that gas mining is being contemplated in a region that is already suffering the effects of climate change.

“Burning the gas will add CO2 to the atmosphere when the rest of the world is urgently trying to eliminate its CO2 emissions.”

Mr Gambian said an industrial gasfield would not only be bad for the climate, it would have significant on-the-ground impacts.

“Industrial gas fields are criss-crossed with roads that are bulldozed to give installation and maintenance crews access,” he said.

“In major gas fields, hundreds of kilometres of roads cut through wildlife habitat and grazing land and trigger erosion.

“Habitat fragmentation is a key threat endangering the survival of many unique rangeland species, including the plains wanderer.”

The gas field exploration areas announced by the government cover the Broken Hill Complex and Murray Darling Depression bioregions.

The Broken Hill Complex bioregion is home to 51 vulnerable species, 30 endangered species, one critically endangered species, one endangered population and one endangered ecological community. [4]

The Murray Darling Depression bioregion is home to 67 vulnerable species, 39 endangered species, 6 critically endangered species, 2 endangered populations and 5 endangered ecological communities.

References
[1] There are two exploration areas: one between Wilcannia, Cobar, Ivanhoe and Hillston in geological formations called the Neckarboo and Yathong-Ivanhoe troughs; the other is between Broken Hill, Wilcannia and Tibooburra in geological formations call the Bancannia and Pondie Range troughs. 
[2] Upset at snub in submission time for Far West gas tilt, The Land, 3/3/21
[3] How much water does hydraulic fracturing use?, American Petroleum Institute. “The average fracking job uses roughly 4 million gallons of water per well …” 4 million gallons is 15 million litres.)
[4] NSW Office of Environment and Heritage, Habitat area search Search by region | NSW Environment, Energy and Science