Flood plain harvesting legal status ‘uncertain’ in NSW government legal advice | Ralph-Lauren

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NSW Water Minister Melinda Pavey has agreed to make public internal government legal advice that suggests most flood plain harvesting in New South Wales is conducted without a licence and is “on the balance” an offence under state water laws.

Flood plain harvesting involves capturing water from the plains during a flood using levy banks to divert or pump it into a farmer’s dam to use later on to produce crops such as cotton.

Government forced to publicly release legal advice

The NSW Parliament has been debating regulations over the past year to allow flood plain harvesting to continue until formal licensing could be introduced on July 1 this year. 

Late last year, regulations were put in place but they were subsequently “disallowed” by the Upper House, putting the industry’s legal status under a cloud.

Independent MP Justin Field wearing glasses and a green shirt
Independent MP Justin Field filed an FOI request to force the government to make the legal advice public.(

Supplied: Justin Field

)

Now, Independent MP Justin Field has alleged the NSW government withheld internal legal advice from key members of parliament during that debate.

That advice has just been publicly released by Ms Pavey.

Mr Field welcomed the release but said it came too late.

He said the legal advice made it clear that the government knew there were serious questions about the legal status of flood plain harvesting, despite conflicting statements from irrigator groups.

The Gwydir Valley Irrigators Association has previously said that the disallowance “Does NOT make flood plain harvesting automatically illegal” while the Southern Riverina Irrigators have published material claiming that it is.

Part of the uncertainty goes back to the Water Act 1912 that provided powers to license flood plain harvesting but which was never applied.

Water take from the flood plain was treated as a “freely available bonus to a farmer’s licensed entitlement”, according to the government’s legal advice.

Mr Field said he hoped all parties could now sit down and discuss compromise legislation that allowed water for irrigators, communities, and the environment that fit within the limits set by the Murray-Darling Basin Plan.

LiDAR flood plain harvesting dam image
A LiDAR image of a dam in NSW used by the Department of Industry and Environment to determine water take in the Northern Basin. Water is red.(

Supplied: Department of Industry and Environment, NSW

)

So is flood plain harvesting currently legal?

The government received advice from the Department of Planning, Industry and Environment stating it would be an offence for irrigators to take water unless they have a licence and approved irrigation works.

It said:

“The department has received confidential and privileged legal advice that under the Water Management Act 2000, unless basic landholder rights or an exemption applies, it is generally an offence to take water without an access licence, and to use a water supply work (e.g. a structure used for flood plain harvesting) without a water supply work approval (sections 60A and 91B of the Water Management Act 2000, respectively).

“However, it may be arguable as to whether or not these offences currently apply to flood plain harvesting.”

That advice presents a significant problem for irrigators who have been taking water since the Upper House disallowed the government’s regulations on September 22 last year.

Many will have taken water in the flood event this year. 

It is also a problem for the state’s water watchdog the National Resource Access Regulator (NRAR), which is considering whether it should move to penalise irrigators for taking it.

The NRAR advised irrigators in October last year that they should seek their own legal advice if they were uncertain how they were affected.

Government rejects accusation

In a statement, a spokesperson for the Minister’s office said the advice only showed the legal status of flood plain harvesting was uncertain and the updated Crown Solicitor’s advice was released to Parliament during the disallowance rescission.

Mr Field said the advice was obtained by him through a parliamentary freedom of information request but legal privilege claimed by the government prevented anyone other than Legislative Council MPs from reading it.

“Even Labor’s Shadow Water Minister Clayton Barr was unable to see or be advised about the advice at the time of the disallowance debate,” Mr Field said.

CEO of NSW Irrigators Council Claire Miller said she was tired of the “tit for tat” arguments and her members wanted a solution.

She believed the amount of water irrigators would get under new licensing arrangements would be much less than they had been taking in the past. 



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