Author: Dr Ted Christie*
“Finding a Sustainable Outcome for the Murray-Darling Basin Plan: An Alternative Pathway for Resolving State Water Rights and Extraction of Water” (2011) 31 Qld Lawyer 82.
I believe that in this age of science we must build legal foundations that are sound in science as well as in law. Scientists have offered their help. We in the legal community should accept that offer. The result, in my view, will further not only the interests of truth but also those of justice. The law will work better to resolve many of the most important human problems of our time. (Justice Michael Kirby (1999))
The ecological health of the Murray-Darling Basin river system is a major environmental concern for Australia. The extent of water extracted from the four Basin States – Queensland, New South Wales, Victoria and South Australia – is the source of the conflict.
The Federal Government agency, the Murray–Darling Basin Authority, has the statutory power for developing a Basin Plan for the sustainable use of the Basin’s water resources under Commonwealth legislation, the Water Act 2007.
In October 2010, the release of the Authority’s “Guide to the Proposed Basin Plan” for public consultation and discussion led to considerable public agitation and controversy.
Opposition from many sectors within the community reflected a situation that if the underlying causes of conflict were not effectively resolved in the Final Basin Plan, they would remain as a source of resentment or irritation. The outcome would be for further conflict to re-emerge at some later date requiring resolution; the alternative would be litigation.
But how has such a situation arisen? Finding a solution to manage the Murray-Darling Basin’s water resources should not be seen as the exclusive domain of law; or as the sole province of science. Resolving this environmental problem is not simply a legalistic or a scientific problem – but a cross-disciplinary one. In this regard, the proposition of Justice Kirby has direct application for resolving the conflict over planning and managing the Basin’s water resources.
In part, the problem is one of the processes used to resolve this environmental conflict. Today, society is confronted with natural and fiscal limits that were unimaginable in the past. The challenge is to move forward and away from processes and governance structures created in an earlier era to address a very different set of problems.
To take up this challenge there is an alternative pathway to the approach relied on by the Authority for determining a sustainable solution for the final Basin Plan.
The pathway is one of cross-disciplinary problem solving – law, science and effective participatory approaches – and the use of this knowledge. New approaches for resolving conflicts over environmental sustainability are based on joint action and shared responsibility, using accepted contemporary principles for assessing, managing and resolving environmental conflicts.
But, how can this alternative pathway be introduced?
The potential risk of litigation arising from procedural rights under the Water Act, or section 100 of the Constitution, can act as a trigger for the Commonwealth to consider sharing its power with the Basin States. The final Basin Plan would be prepared by the Commonwealth and the Basin States arriving at a sustainable outcome by mutual negotiation.
Finding a sustainable outcome would prevent the past history of environmental problems in the Basin from being repeated.
*MAgrSc (Qld) PhD (Macq) BAB (Qld), Barrister and Mediator, Queensland Bar. Author of Finding Solutions for Environmental Conflicts: Power and Negotiation (New Horizons in Environmental Law Series, Edward Elgar Publishing, Cheltenham, United Kingdom, 2008). For more information, see also http://www.environment-adr.com/.