When water pours into legal minefields

Water and Australian law do not mix. Managing our scarce resources seems, inevitably, to lead to legal dispute. The latest battle has erupted over whether the law allows local interests to be taken into account in preparing the Murray-Darling Basin Plan. Once again, this exposes problems with how the legal system deals with the management of our rivers.

The Murray-Darling Basin Authority's guide to its plan has provoked considerable community anger. The authority is free from the partisan and state-specific interests that have bedevilled good governance in this area.

However, it has been said that there is no point in having an independent body if it is forced to overlook the interests of local water users and their communities.

The authority is created by the federal Water Act 2007. The key to its power lies in section 21, a complex and hard-to-follow provision that produces more confusion than clarity.

The wording of section 21 may be convoluted, but its legal effect is clear. The basin plan must be prepared so as to give effect to a number of international environmental agreements, such as the 1971 Ramsar Convention on the conservation and use of wetlands and the 1992 Convention on Biological Diversity. Lest there be any doubt about the ecological imperative imposed on the authority, the section further states that the plan "must promote sustainable use of the basin water resources to protect and restore the ecosystems, natural habitats and species".

If this was all section 21 said, it would vindicate those who argue that the authority can ignore local communities in preparing the Plan. However, the section also states that the authority "must act on the basis of the best available scientific knowledge and socio-economic analysis". It must also have regard to "the consumptive and other economic uses of the basin water resources" and "social, cultural, indigenous and other public benefit issues".

Clearly, any suggestion that the authority need not take into account the socio-economic interests of farmers, irrigators and other locals is false. If it did so, the authority would breach its own act.

The sting for local communities lies in the fact that these interests follow after the environmental matters set out in the international conventions. Section 21 is clear in stating that these environmental considerations take precedence and that local economic and other concerns must be taken into account "subject to" them.

The Commonwealth's decision to give the highest priority to certain environmental concerns is driven by the constitution, rather than government policy. It is a result of the federal Parliament legislating in an area over which it has never been granted clear authority. Power over water and rivers was left to the states at Federation in 1901, and the Commonwealth has not since been granted a clear constitutional mandate.

The federal Parliament passed the Water Act to impose the national interest on the management of the Murray-Darling system. To do so, parliament had to rely upon a hodgepodge of federal power over things like interstate trade and commerce, astronomical and meteorological observations, census and statistics, weights and measures, corporations and external affairs.

The most important power is that over external affairs, to which the High Court has given a wide interpretation since the 1983 dispute over the damming of the Franklin River in Tasmania. So long as the right international convention can be found, this power provides a wide basis for legislating in what had been areas of state control.

In passing the Water Act, the Commonwealth identified a number of international conventions upon which to base its management of the Murray-Darling basin. However, in doing so, the conventions must be implemented faithfully.

Any basin plan must be consistent with the international agreements or face being struck down by the High Court. The result is a Water Act that says that the authority must ensure as a first priority that the Basin Plan gives effect to the international conventions.

Attempts at better management of the Murray-Darling basin continue to unfold against a complex set of legal obligations and century-old constitutional provisions. Unfortunately, this is driving outcomes in a way that reduces the chances of a fair accommodation of both environmental and local concerns.

There is room for debate about the relative importance of each. However, the answer should not be preordained by our legal system. Once again, how we manage our scarce water resources is being held hostage by our 1901 constitution.