The Murray-Darling is Australia’s largest and most complex river system, flowing through five states and territories and supporting diverse and iconic ecosystems. It is also now one of the most vulnerable water basins on Earth, writes EJA lawyer Natalie Hogan.

In 2012, the Murray-Darling Basin Plan was introduced, with an aim to achieve a “healthy and working Murray-Darling Basin”. The Basin Plan is the principal legal framework operating under the Commonwealth Water Act.

The objectives of the Water Act are to:

• Manage Basin water resources in the national interest;
• Give effect to international environmental treaties;
• In doing so, promote and use Basin water resources in a way that optimises economic, social and environmental outcomes, addresses over-extraction and achieves an environmental sustainable level of take;
• Protect, restore and provide for the ecological values and services of the Murray-Darling Basin; and
• Subject to the above, maximise net economic returns to the Australian community.

The key legal mechanism built into the Water Act aimed at achieving the above outcomes and intended to resolve tensions is the requirement to reach an “environmentally sustainable level of take”. That means, the amount of water that can be taken or diverted without jeopardising the health of the river and the ecosystems that rely on it.

The Basin Plan establishes the environmentally sustainable level of take and the volume of water required to be recovered by 30 June 2024. However, it is becoming increasingly clear that this deadline will not be met.

Recently, the Federal Department of Climate Change, Energy, the Environment and Water called for ideas from the public on Delivering the Murray Darling Basin Plan.

On Monday 3 July 2023, EJA made a submission setting out our key recommendations to achieve ecological outcomes and environmental justice for First Nations communities within the Murray Darling Basin.

The stated purpose of the Basin Plan was to manage the amount of water being diverted away from environmental sources to enable the river to function naturally and deliver water to floodplains in the absence of naturalised flooding.

Between 2012 and 2018, there was increasing public concern that the Basin Plan was failing to achieve any of its stated ecological outcomes, and reports emerged of water theft, illegal take and misuse of Commonwealth funds, amongst other things.

Ultimately, this prompted a South Australian Royal Commission which, in 2019, found that the Basin Plan had been subject to gross maladministration, negligence, misconduct and unlawful actions. The Commission made 44 recommendations, including for the States to review their water resource plans to expressly recognise and authorise the taking and use of water by First Nations people in exercise of native title rights, and to deliver more water to the environment which has previously been allocated to farming and irrigation. The Commission also observed that the Plan and environmentally sustainable level of take did not account for the effects of climate change and that the Murray-Darling Basin Authority needed to “urgently” conduct a review of this using the best available scientific knowledge. Ultimately, the Commission recommended a complete overhaul of the scheme.

The Murray River and its floodplains are special places, and we have a responsibility to safeguard their resilience and health for future generations.

For too long, politics and economic interests have displaced law, science and Traditional Owner aspirations for country.