11 Jul 2019

Murray-Darling Basin: What are "critical human water needs"?

By Jamie Doran, Caitlin McConnel

There are some concerns about the current interpretation of the provisions pertaining to critical human water needs.

Australia is considered one of the most vulnerable countries to the impacts of climate change. Ongoing drought continues to cripple the Murray-Darling Basin, and if atmospheric temperatures continue to rise, there is concern that a large proportion of agricultural production in the Murray-Darling Basin will cease.

In developing water resource management plans under the Water Act 2007 (Cth), Basin States must have regard to the management of its water resources during extreme dry periods; particularly the allocation of water during Tier 2 water sharing arrangements for the purposes of meeting critical human water needs.

Given the importance of water and food security in the Murray-Darling Basin, Australia's international obligations and the economic and social costs of water management within the Murray-Darling Basin, the question arises: do the provisions relating to critical human water needs in Part 2A of the Water Act extend to meeting the basic human rights to water and an adequate standard of living with respect of Australian agricultural production and national security?

"Critical human water needs" in Basin Plans: what do they include?

The Water Act was created to make provision for the management of the water resources of the Murray-Darling Basin, as well as other matters of national interest in relation to water and water information. Put simply, the Basin Plan will set the volume of water for each State that can be taken from the Murray-Darling Basin each year, with the aim of ensuring that water is shared sustainably between all users and the environment, through the promotion of the objects of the Water Act.

Water sharing and allocation for ground water and surface water will be governed by the compulsory water resource plans being developed by each Basin State in accordance with the Water Act and the Basin Plan. In accordance with section 10.02(2) of the Basin Plan, water resource plans must plan for extreme events, such as prolonged dry periods. Significantly, however, the power of Basin States to allocate water resources during extreme dry periods appears conditional upon the requirement under section 86A(1) of the Water Act and in section 10.51(1)(a) of the Basin Plan to ensure that regard is had to, and that management plans do not compromise, a Basin State's ability to meet critical human water needs. 

2.    This requires considering six issues:

  1. the interpretation of "critical human water needs", including consideration of how Basin States will balance allocation of water resources during extreme dry periods for "core human consumption", while also preventing "high social, economic or national security costs";
  2. what is in the "national interest" when considering water allocation;
  3. what are "economic and social costs" when considering water allocation;
  4. whether meeting critical human water needs as defined by Part 2A of the Water Act is applicable to all water resources within the Murray-Darling Basin;
  5. whether prioritising conveyance water for the River Murray System over the needs of Basin States to manage water resources conflicts with the objects of the Water Act; and
  6. whether the obligation on Basin States pursuant to section 86A(1)(b) of the Water Act and section 10.51 of the Basin Plan conflict with Australia's international obligations in respect of the human right to an adequate standard of living and the human right to water.

The responsibility for meeting the critical human water needs of each Basin State is a duty imposed by section 86B(3)(b) of the Water Act.  However, the Basin States have the discretion to decide how water from their share is allocated. We would suggest that in order for Basin States to meet critical human water needs, they must ensure the availability and accessibility of water which is essential:

  • to the realisation of the right to an adequate standard of living, which includes food and water;
  • to reducing national security costs through continued agricultural production; and
  • to the reduction of socioeconomic costs such as loss of production, employment or health standards.

On the basis of the above, we would argue that there are some concerns about the current interpretation of the provisions pertaining to critical human water needs. In particular, as Basin States move to finalise water resource plans in accordance with the timeline stipulated by the Basin Plan, the Murray-Darling Basin Authority must consider, and provide further guidance on the implementation of Part 2A of the Water Act, to ensure Australia is not falling foul of the objects of the Water Act or basic human rights obligations.

These issues are explored in more depth in Caitlin's full article "Critical Human Water Needs: Failing to comply with the objects of the Water Act and Human Rights obligations?" in (2019) 36 Environmental and Planning Law Journal 212.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.