EJA lawyers worked with Murray Lower Darling Rivers Indigenous Nations and concerned scientists to propose robust amendments to Australia’s water laws in a bid to save the Murray-Darling Basin from decades of mismanagement.

The Murray-Darling Basin Plan was first introduced in 2012, but the last decade has been marked by inaction, over-extraction of water, and sabotage by both state and federal governments.

By 2022, it was clear that almost half the proposed “water offset” projects and commitments were not going to be met by the deadline of June 2024.

The Water Amendment (Restoring our Rivers) Bill 2023 was heralded as a chance to break the deadlock and make meaningful improvements to the scheme. The Bill was passed by the Senate on 30 November.

While some amendments drafted by EJA Lawyers resulted in some positive outcomes, overall, the Bill is a missed opportunity to bring our national water laws into line with science and to achieve substantive rights for First Nation peoples.

Ultimately, while it’s a step in the right direction, the Bill fails to make the bold changes needed to guarantee the survival of precious native flora and fauna, restore the health of internationally significant wetlands, and recognise and promote water rights for First Nations peoples in line with our international obligations.

Fundamentally, these weak reforms mean our most important river system is at risk in a rapidly changing climate.

Why it matters

A recent report commissioned by Environment Victoria found that the recovery of 140 Victorian threatened species is dependent on restoring adequate environmental flows in the rivers, floodplains and wetlands of the Murray-Darling Basin. This list includes 48 animals (fish, birds, frogs and invertebrates) and 92 plants.

Despite this, only 26 gigalitres of the 450 gigalitres of environmental flows have been recovered to date.

When it comes to First Nations water rights, despite representing 13% of the Basin population, Basin Indigenous peoples own less than 0.2% of surface water entitlements.

Delivering environmental water

With the nation’s biggest river system under stress, all levels of government and landholders need to make hard decisions.

In line with our recommendations, amendments tabled in the Senate aimed to guarantee the delivery of the required 450 gigalitres of water to the environment by December 2027.

Other provisions were aimed at stopping states like Victoria and NSW from delaying and dodging important deadlines and targets.

Along with other measures, the bill removes the cap on the amount of water the Commonwealth can purchase for the environment from willing sellers (known as “buybacks”).

The revival of water buybacks has been seen as controversial even though new research suggests that voluntary water buybacks are supported by 63% of regional Australians and opposed by just 11%.

What has EJA done?

In October, EJA Senior Specialist Lawyer Dr Bruce Lindsay and Lawyer Natalie Hogan appeared at the Senate Inquiry into the Bill and worked closely with Wentworth Group of Concerned Scientists and Murray Lower Darling Rivers Indigenous Nations (MLDRIN) to draft more than 20 pages of amendments to make robust improvements to the scheme.

The amendments drafted by EJA, MLDRIN and the Wentworth Group were used by the Australian Greens and independent Senators to inform key priorities and negotiate for stronger laws.

Faced with staunch opposition by the Coalition, the Federal government relied on the Greens and crossbenchers to secure the Bill’s passage through Parliament.

Ultimately, the government struck deals to gain the support they needed in the Senate and, despite best efforts, this forced compromises on critical issues.

Below, we look at how some of our most important water laws have and haven’t changed through this process, and the ongoing risks and challenges for Australia’s largest water catchment.

A lack of safeguards

There’s still a risk that the Basin Plan can be undermined due to a lack of safeguards and milestones that would hold states accountable and ensure that the public has legal recourse if targets are not achieved.

That’s why we urged the Federal Government to appoint an independent panel to oversee negotiation processes and prevent stalling by landowners and the states.

We argued that, if negotiations are unsuccessful, the Commonwealth must use its existing powers to oversee the compulsory acquisition of land, as it does for other projects and developments.

Disappointingly, the Bill passed without these safeguards. It doesn’t go far enough to restore river connectivity and ensure that critically important habitat and wetlands are not left out to dry.

Integrity measures

We put to Senators a raft of recommendations to stop states and landholders from dragging their heels on meeting Basin targets. This included increasing the oversight functions and powers for the Inspector-General for Water Compliance.

While some of these criteria didn’t get over the line, an important amendment was passed that allows the Commonwealth to withdraw from failing projects to put resources and funding to better use.

First peoples’ rights or more aqua nullius?

In advocating for the recognition and rights of First Nations peoples, we urged the Federal Government to finally give effect to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

We worked with MLDRIN to draft specific amendments that would go further than merely acknowledging the connections of First Nations peoples to the land, water and wildlife in the Basin.

We advocated for substantive rights and procedural changes that would require the government to partner with Indigenous Peoples to manage water resources and ecosystems and obtain their free, prior and informed consent before making relevant decisions.

The amendments were tabled by Senator Lidia Thorpe after weeks of work, but it was extremely disappointing to see that most of the extensive proposals submitted were not passed.

Instead, we have been left with watered down laws that further delay application of UNDRIP and do little more than recognise, with no real legal effect, the ancient connections of Indigenous people in the Basin.

The improvements to recognition of First Nations people are the result of the fierce advocacy and leadership of MLDRIN and other indigenous groups, peoples and allies.

Now, more must be done to secure water rights and ensure cultural flows are achieved.

Climate change (and science) continues to be ignored

In the Second Reading Speech for the Bill, it was acknowledged that climate change means “that basin flows could fall by as much as 30 per cent by 2050.

Despite this acknowledgement, the Bill does not ensure climate change projections and impacts are adequately accounted for in the implementation of the Basin Plan. It is extraordinary (and unlawful) that climate science continues to be ignored in decision-making under the Act.

We drafted amendments to make sure the government would have to act based on best available science, but these proposals were watered down during negotiations and debate.

The can has been kicked down the road again, with climate change mitigation to be considered at the next review of the Basin Plan, in 2026.

What now?

We also proposed reforms based on delivering environmental justice and providing financial support to communities who will bear the brunt of climate change, but these were ignored.

This is an alarming indication of where climate change actually ranks on the Federal government’s agenda when it comes to safeguarding the health and wellbeing of future generations.

The Murray-Darling Basin is the lifeblood of communities across five States and Territories and urgent action is still needed to protect the places we, and countless precious plants and animals, call home.

— Bruce Lindsay, First Nations Justice Lead and Senior Specialist Lawyer.