Floodplain legality 'tit for tat'

FPH legal advice whirlpool

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The legality of floodplain harvesting prior to the licencing program being rolled out has been ambiguous.

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Independent MLC Justin Field has accused NSW Water Minister Melinda Pavey of "failing to reveal" internal legal advice on floodplain harvesting to the public.

Independent MLC Justin Field has accused NSW Water Minister Melinda Pavey of "failing to reveal" internal legal advice on floodplain harvesting to the public.

INDEPENDENT MLC Justin Field has accused NSW Water Minister Melinda Pavey of "failing to reveal" internal legal advice to the public which he says indicated that most floodplain harvesting without a licence would "on balance" constitute an offence.

The floodplain harvesting licencing program was due to implemented by July 1, however, the relevant regulations proposed by the government were disallowed by the Upper House earlier this month.

Mr Field led the charge, arguing that downstream targets were needed before the floodplain harvesting regulations were signed off.

The legality of floodplain harvesting prior to the licencing program being rolled out has been ambiguous and an exemption regulation, which would have irrefutably allowed irrigators to continue the practice in the interim, was also disallowed by the Upper House last year.

Mr Field claimed Mrs Pavey did not make the legal advice prepared for the Department of Planning, Industry and Environment (DPIE) public during the latest parliamentary debate on the practice, "enabling the NSW Irrigators Council to circulate contrary advice while lobbying Members of Parliament to vote to accept the new licensing regime".

In the days prior to the vote on the regulations, NSWIC wrote to members of parliament stating its legal advice on the practice was "unequivocal".

"Disallowing the regulations to reduce, licence and measure floodplain harvesting means continued uncontrolled and unlimited floodplain harvesting that is not subject to rules or metering obligations," it stated in the letter.

Mr Field said he welcomed the release of the information but it was "an extraordinary act of bad faith to have allowed this debate to happen without the Government's own legal advice being in the public realm for all stakeholders and parliamentarians to see and understand".

A spokesperson for Mrs Pavey responded to Mr Field's claim, stating it was incorrect that the advice was deliberately withheld. They said the advice in question had been provided to the legislative council (which debated and voted to disallow the regulations), and therefore Mr Field had access to it since last year.

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A spokesperson for Mrs Pavey failed to answer questions from The Land about when she had received the advice but stated she had "received a verbal briefing on the legal advice from DPIE Legal, who advised her floodplain harvesting was legally uncertain".

As to why the legal advice was not made public before the latest parliamentary debate, the spokesperson for Mrs Pavey said, the "legal advice was tabled in 2020 in the Legislative Council on floodplain harvesting".

"The fact is the advice shows the legality of floodplain harvesting is uncertain," the spokesperson said.

"Labor and the Shooters had the opportunity to provide clarity by supporting the government's efforts to licence and meter floodplain harvesting down to the 1994 cap."

So what did the internal legal advice actually say?

Prepared for the DPIE, an extract of the summary reads "on balance, and while not without doubt, we think the better view is that generally, the taking of water in the course of floodplain harvesting, without an access licence, from an unregulated river water source that is covered by a water sharing plan would constitute an offence ...

"However, this is less clear in circumstances of 'passive take', where there are arguments either way."

While Mr Field summarised the advice on floodplain harvesting without a licence to say it was "on the balance" an offence, NSW Irrigators Council (NSWIC) chief executive officer Claire Miller argued the legal advice was not definitive and "explicitly raised doubt about its own findings".

"The opinion is also consistent with our legal advice and that of the Crown Solicitor, in that a floodplain is not currently recognised as a water source, and raising doubt on whether the practice is considered a form of water 'take'," Ms Miller said.

One thing Mr Field and the NSWIC agreed on was the "tit for tat" on legal advice had to end. Mr Field is calling for an "open and transparent process to clarify the law, the definitions, the models and the rules for how this type of water take can work fairly..."

The story Floodplain legality 'tit for tat' first appeared on The Land.

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