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The New South Wales water regulator has cast doubt over its ability to prosecute potential water theft due to uncertainty about the validity of licences governing billions of litres of water entitlements in the state’s north.
It follows a successful legal challenge brought by a group of irrigators in the state’s north-west which found 11 floodplain harvesting licences issued by the former Coalition government were invalid.
The NSW land and environment court found the government had failed to follow correct procedures related to fair consultation with landholders. The case, known as Emu Rider, has raised questions about the validity of the process used to issue hundreds of floodplain harvesting licences.
Floodplain harvesting refers to the collection and storage by farmers of water that flows across floodplains. Collectively, hundreds of licences issued in the state’s north govern the take of billions of litres of flood water, which would otherwise flow through the river system.
Floodplain harvesting licences set limits on how much water can be extracted.
Grant Barnes, the chief regulatory officer of the Natural Resources Access Regulator (NRAR), told a parliamentary estimates committee that the Emu Rider case and a separate legal matter in the state’s supreme court had created “uncertainties” for the enforcement agency, which is responsible for ensuring floodplain harvesting licence holders comply with their extraction limits.
“Uncertainty, for a law enforcement agency, creates challenges,” Barnes said.
“When we are taking enforcement we need to substantiate to a high burden of proof … There are uncertainties that have emerged as a consequence of these two cases that mean that on each circumstance we’ve got to evaluate the merits of the situation and whether or not we can substantiate a breach of law.”
In another separate legal challenge brought by major irrigator Budvalt, the supreme court of NSW found the volume of water extraction permitted by the licence had been inaccurately determined and ordered the government to recalculate.
Two further proceedings challenging the validity of floodplain harvesting licences issued in the Border Rivers and Gwydir Valley regions were filed in NSW courts this month.
Emma Carmody is the South Australian commissioner for the Murray River and a water lawyer with extensive experience advising on water laws in NSW.
She said: “if the same defective process were applied to other floodplain harvesting licences, those licences would also be susceptible to a finding of invalidity”.
“On that basis, it is not difficult to see why the chief regulatory officer would intimate in parliament that he lacks the regulatory clarity required to enforce the law in all circumstances.”
Carmody said it was an “extraordinary situation given the number of licences potentially involved, and the volumes of water”.
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“To that end, I’m sure the community would welcome clear signals from the government regarding the precise nature and scale of the problem, and the proposed remedy,” she said.
The NSW water minister, Rose Jackson, told Guardian Australia the government “intends to make changes to the regulatory framework for floodplain harvesting in light of recent, disappointing legal decisions”.
Jackson said the Minns government had inherited a “very challenging system” from its predecessors.
“I have been briefed on the implications of these legal matters for some time and directed the department to take steps to quickly resolve issues identified by the courts,” she said.
“We will continue to make whatever changes are necessary to achieve our shared goal of a clear regulatory framework.”
Barnes told Guardian Australia that floodplain harvesting licences were just one way in which the regulator ensured lawful use of water in NSW.
He said while uncertainties arising as a result of the two court judgments meant NRAR was “constrained in our ability to prosecute” alleged breaches of floodplain harvesting licences, it did not affect the regulator’s ability to enforce or prosecute other types of breaches.
Barnes said he remained confident in NRAR’s ability to monitor water take from floodplain harvesting.
