In his 2019 South Australian royal commission report on the Murray-Darling Basin Plan, Commissioner Bret Walker, SC, used terms like "maladministration", "gross negligence" and "nonsensical in a policy sense" throughout his 746-page analysis of the drafting and implementation of the plan.
He described the Commonwealth agency involved, the Murray-Darling-Basin Authority, as having an "aversion to proper scrutiny" and of being "unwilling and incapable of acting lawfully".
I have been given fewer words here, so best to move straight to the highlights behind these findings. But first a question: why should Australians care about this?
The basin covers an area larger than France. It contains 60 per cent of our farms, and our biggest river system. It is home to 16 Ramsar-listed wetlands - areas of huge ecological significance over which Australia has treaty obligations to protect. About 40 Aboriginal nations are the traditional owners of the basin.
Listen to the Forgotten River podcast about the Murray-Darling.
Read more about the Murray-Darling Basin in our Forgotten River series:
- Listen to Forgotten River above or find it on your favourite podcast player.
- Meet the team behind the Forgotten River.
- Learn about Wilcannia. Before it was a COVID hotspot.
- Find out what happened after the historic Menindee Lake fish kills
- Hear the stories of those challenging water policy to save Australia's outback river
In short, we should care about the basin and its management because it is of enormous cultural, environmental and economic significance.
If we care about the basin, why care about the Basin Plan?
Let's move quickly past the point that, given it comes at a cost of at least $13 billion, we should rightly expect it to be implemented without "maladministration" or "gross negligence".
Here is what the Basin Plan is designed to do, at its simplest, which is why we should all care about it: it represents federal Parliament's recognition that in this hot, dry and drought-prone continent, we have for decades overallocated water for irrigated agriculture.
This has caused severe damage to the environment, including to wetlands and forests we should treasure, and that we are legally bound to maintain.
So, the goal of the Basin Plan is simple: some of the water allocated to irrigation will have to be returned to the environment.
How much? Well, enough to stop destroying the wetlands and other important ecosystems. There will still be irrigated agriculture.
Canberra has not commanded us to go back to the conditions of the 1780s (invasion) or the 1880s (beginnings of irrigation).
What is required, and I'm paraphrasing, is for us to "stop trying to pump the Murray and the Darling dry".
Let's grow food and fibre, but not so much that we wreck the joint. Does that sound unreasonable?
So, what went wrong? Well, the Water Act says that the amount of water that must be returned to the environment under the Basin Plan must be determined "on the basis of the best available scientific knowledge".
If it had said determined on the basis of "a show of hands of water bureaucrats as dictated to by lobbyists for big agriculture", the status of the lawfulness or otherwise of the plan might be different.
But that's not what the law requires. And after four years, when scientists of different disciplines had done their work following the passing of the Water Act in 2007 and before the legislating of the Basin Plan in 2012, these experts told us that the environment needed more water returned to it than some people were prepared to cop. About 4000 billion litres (low chance of the environment surviving) to 7000 billion litres (good chance) on a yearly average (eight to 14 Sydney Harbours).
The response of our politicians and bureaucrats was to sideline the science and work out the figure for themselves - which they decided was about half the lower end of the lawful range.
They decided that however many billions of litres the environment actually needed according to the best science, that amount as a volume had to start with a "2" (they settled on 2750 billion litres).
The Aboriginal people had their own water plan: 'don't be greedy', it said, 'don't take more than you need and respect everything around you'.
This became known amongst some exasperated staff within the MDBA as the "postcode" determination. That is, the volume of water the environment needs returned to it on a yearly average should be represented by a NSW postcode (in this case, it being 2750, the suburb of Penrith) rather than, say, a part of Queensland (which would start with a "4").
This, as may seem obvious, is not science. Nor is it lawful. It's not even very useful for our $13 billon.
The CSIRO produced a report in 2011 found that such a plan would be of limited benefit. As Mr Walker found, this was a shabby "political fix" of a very Australian kind.
The politicians might call it a "compromise" of a very Australian kind.
Now, if the law permitted this, I might not mind. I am for irrigation in the basin. I'm in favour of farming, and the growing of food and fibre.
But my preference is not so much irrigation that we risk killing our wetlands from the Coorong up, and every native forest, tree and fish on the way. And I have a strong preference for bureaucrats acting in accordance with the law. Perhaps, in current times, that is an inclination of an old-fashioned kind.
Worse was to follow even the "postcode" fix. No proper account for climate change was taken when the Basin Plan was determined.
A critical field of the "best available scientific knowledge" was ignored. Not only was this unlawful, as it was in breach of the Water Act, but to use Mr Walker's other words, it was "incomprehensible", "nonsensical" and "negligent". And it was a course chosen by the MDBA despite the research of the CSIRO, published in 2009, advising it that much of the basin will, as a matter of near certainty, get hotter and dryer.
As we pollute our way further into the planet's climate emergency, we know that for each 1 degree Celsius the daily average temperature rises in the basin, there will be a 15 per cent drop in run-off of water into its river system. Fifteen per cent. Little wonder our leading commonwealth scientific agency told the MDBA that it would be "scientifically indefensible" for it not to include climate change projections in its calculation of how much water the environment needs returned to it in order to survive. Given the MDBA's rejection of this advice, a case could be made that describing this as "maladministration" is overly polite.
There were many other reasons why Mr Walker found unlawfulness in the Basin Plan and its implementation, but the "postcode" fix and rejection of climate projections were headline acts.
Here is a final one: for millennia before the Chaffey Brothers helped set up irrigation of the Murray in the 1880s, the rivers, the watercourses, the wetlands and the forests of this country had been occupied and managed. The Aboriginal people had their own water plan: "don't be greedy", it said, "don't take more than you need and respect everything around you".
Maybe, with the Basin Plan, we should start again with that.
- Richard Beasley, SC, was senior counsel assisting the SA royal commission. He is the author of the book "Dead in the Water: A very angry book about our greatest environmental catastrophe ... the death of the Murray-Darling Basin".