THE Natural Resources Access Regulator's independence has been questioned after independent MP Justin Field gained access to internal government documents relating to floodplain harvesting.
Mr Field earlier this year built an alliance of cross benchers and the ALP to defeat a government regulation that would have allowed floodplain harvesting without a licence or works approval.
His disallowance motion passed 16-22 on the evening of September 22, however, he was already aware of behind-the-scenes discussions between government departments, politicians and NRAR.
Emails obtained by The Land show that by 10.49pm the same night, it was business as usual for the Department of Planning, Industry and Environment's Healthy Floodplains Project Delivery director Dan Connor, who emailed three sentences to eight senior DPIE staffers suggesting how to sidestep the disallowance.
He said the "only way to achieve the same intent of this regulation is if NRAR exercise their discretion".
NRAR's intended approach to floodplain harvesting was later relayed in an opinion piece written by its chief regulatory officer Grant Barnes and published by The Land ("Water take still NRAR's focus amid uncertainty", October 22, p19).
Mr Barnes suggested NRAR would exercise its discretion, writing "the ambiguous environment the disallowance has created will be considered through our investigations".
Mr Field applied for access to inter-departmental 'chatter' to learn how NRAR (which is funded by the DPIE) came to its position.
That access revealed a trail of emails - 2000 pages of them - between NRAR, the DPIE and Water Minister Melinda Pavey's office.
The emails suggest a cohort in crisis management mode and therein lies the problem, say observers watching the drama unfold - among them, consultants Slattery and Johnson and Shooters, Fishers and Farmers Murray MP Helen Dalton.
Consultant and former Murray Darling Basin Authority environment water policy director Maryanne Slattery questioned the manner in which decision-making processes within the NSW government were being implemented.
Mr Field said the emails showed there were still agendas being run to bypass the legitimate concerns of the parliament.
"It's clear the Crown Solicitor's advice commissioned and tabled by Minister Pavey in her attempt to overturn the disallowance was deliberately limited in its scope and didn't address the current legal status of floodplain harvesting," he said.
"The recent ICAC report was clear that historically this government's decisions around water have 'prejudiced the environment'as their 'approach has been contrary to the (NSW Water Management Act's) water sharing priorities'.
The ICAC investigation reviewed evidence relating to water management from affected persons but concluded in November 2020 that no corrupt findings could be made.
"The Legislative Council has been right to stall this process," said Mr Field.
The Legislative Council has been right to stall this process.
"The government plans to hand out water licences to a few hundred irrigators on the basis of legally questionable historical practices and with limited protections against negative environmental and social impacts - it's a mess.
"If the government wants to complete the licencing process for floodplain harvesting by July 1 next year it will need to rebuild trust with the Legislative Council."
In an interview with The Land Mr Barnes said while there were no consequences for NRAR, water users should be aware of their legal obligations. By their very nature regulators prefer clarity, he said, because then rules were much clearer.
Mr Barnes said NRAR's discretion would involve interpretation of motive, for example a proven, blatant disregard for the law would result in prosecution.
But he said floodplain harvesters, who have historically captured waters, corralled them and used them for irrigation were now in limbo.
There would be four principles applied when assessing cases of non-compliance.
These would be: the harm caused to downstream communities, irrigators and first nation peoples; conduct and whether it was willful and reckless; matters of public interest; and attiudes to compliance. Those principles were the guide to how NRAR would apply its discretionary powers, he said.
"NRAR has lodged 1036 alleged breaches since January 2020," said Mr Barnes, "134, or 13 per cent of these are specific to flood works. Eighty-eight of these breaches have been classified as high priority and are being investigated."
Flood works can be a barrage, causeway, cutting or embankment situated within a floodplain and of a size to have a likely effect on the distribution or flow of water.
"In 2021 NRAR has scheduled audits of Gwydir, Barwon and Murrumbidgee rivers. These audits will review flood works that could adversely impact the distribution or flow of water," said Mr Barnes. There are 373 storages of more than 1000 megalitres that are currently being investigated for compliance and 693 smaller storages that have another year to fall into compliance and metering.
Southern Riverina Irrigators currently has a class action before the NSW Supreme Court lodged against the Murray Darling Basin Authority.
Should the organisation win, it will be looking at a $7 billion pay out for disparate irrigators spread across several valleys including the Murray and Goulburn rivers and their tribuatries.
Counsel for SRI, Tim Horne, is reticent to take the matter to court because he feels the case is clear enough not to warrant the inevitable expense of legal proceedings.
SRI chairman Chris Brooks is unrelenting and preparing to test the case. There's a bank of money and the only clarity will come from interpretation of law, not policy.