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Collaborative Water Planning: Legal and Policy Analysis

Tan, Poh-Ling (2008). Collaborative Water Planning: Legal and Policy Analysis<br />. Nathan, Qld.: TRaCK Tropical Rivers and Coastal Knowledge.

Document type: Research Report
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Author Tan, Poh-Ling
Title of Report Collaborative Water Planning: Legal and Policy Analysis
Publication Date 2008
ISBN 978-1-921544-43-9   (check CDU catalogue open catalogue search in new window)
Publisher TRaCK Tropical Rivers and Coastal Knowledge
Place of Publication Nathan, Qld.
Total Pages 167
Field of Research 300800 Environmental Sciences
Abstract Report Summary

The purpose of this report is to provide readers with an understanding of the main objectives of national water reform, the critical role that is assigned to water planning by the National Water Initiative (NWI), and the legal and policy framework implementing that reform in northern Australia. The collaborative planning process engages the full range of stakeholders, including Indigenous and other local communities as well as industry. It involves making use of scientific and environmental knowledge and socio-economic analysis.

Water planning is the only mechanism contemplated under the NWI for constructing the public benefit and sustainability outcomes desired by particular communities. Knowing this makes it all the more important that the objective of open and transparent processes is achieved.

Water planning has been carried out in the three jurisdictions of Northern Australia, namely Western Australia, Northern Territory and Queensland, but in many parts of the region, there is little understanding of the NWI in general and the processes which should be used in collaborative water planning in particular.

The report is written for readers who do not have a legal background but are particularly interested in water planning in northern Australia. While the complexity of the subject must be acknowledged, the provision of a glossary containing names and terms may assist readers to keep track of and gain familiarity with important concepts and the many organisations, relevant pieces of legislation and so on, that feature in the legal and policy sphere of water planning.

This report reviews the legislation, case-law and policy on water planning, with a focus on the process of planning not the content of plans. It also interprets analysis of published material in addition to that surveyed in this project’s separate literature review and forecasts possible implications for readers. It starts at the Commonwealth level looking at the Constitution, as well as more recent policy and legislative aspects including the NWI; Native Title and Cultural Heritage legislation; and the National Water Plan. It then provides case studies of the water planning legal frameworks for Queensland, Northern Territory, and Western Australia. It uses New South Wales as a bench-mark as water planning commenced in that state in 1998 and the process has  gone through revisions, thus providing opportunity for learning.

The structure of the report is outlined at 1.2. An overview of collaborative processes in water planning is used to set the scene for the case studies examining water planning processes across northern Australia. Eleven themes∗ are used to structure
the case studies:
• Planning objectives that provide for sustainability and adaptive management.
• Provisions for standards and procedures for statutory water planning
• Provisions that allows for reasonable deadlines
• Provisions for socio-economic or other analysis
• Community engagement in gathering and assessing scientific data including the communication of
  science in water planning
• Provisions for stakeholder engagement
• Provisions for indigenous engagement
• Provisions for transparency in decision-making
• Provisions clarifying the relationship between planning and political process
• Guidelines for use of mediation/negotiation/other conflict resolution techniques
• Integration of water plans with other planning processes including broader natural resource

Table 1 at page 42 sets out the relevant NWI provisions for consultation in water

A total of 17 proposals are made in relation to eight major areas for improvement in collaborative processes in water planning. Formal recommendations will be included in the culminating part of this project. The eight major areas for improvement are:

Collaborative water planning requires the development of clear objectives
In all jurisdictions except the Northern Territory, the objectives of water legislation acknowledge  the role of the community in water planning. Legislation in each jurisdiction should provide a statement of objectives that specifically refers to collaboration in water management and planning. Principles of collaborative planning should be provided either in legislation or in a policy  document. It would be helpful for all jurisdictions to adopt a common statement of principles relating to collaboration, outlining what it means, the objectives that collaboration should achieve, and what levels of collaboration are required in different circumstances.

Promoting stakeholder engagement through deliberative processes
Stakeholder engagement is strongly supported by the NWI, and recognised by legislation in most jurisdictions. A broad range of stakeholders is anticipated – those within or downstream of the plan area, affected water users, communities, industry (e.g. agriculture and mining) and Indigenous peoples. Engagement is seen as critical for creating and maintaining public confidence in water plans and their implementation. States have adopted a rather formulaic approach, with engagement occurring mainly through community panels which may or may not be representative of sectoral interests. There is a lack of reference to or requirement for deliberative participatory processes within Australian water policy and law. Regulatory design in water planning requires a greater emphasis on such processes to develop a range of mechanisms suitable for adoption in a variety of contexts. National principles along the lines of those developed for provision of water for ecosystems would be helpful in this context.

Promoting collaboration through transparency
The NWI emphasises technical assessments and socio-economic analysis as important in providing a sound basis for decision-making. Where these are undertaken, all jurisdictions currently provide for reports to be made publicly available. Satisfaction of this requirement in and of itself does not mean that decisions are transparent. Transparency in decision-making processes is a concept which is relatively new to the management of water, where decisions have long been the domain of administrators as experts. How best to provide for transparency in decision making remains a continuing challenge throughout Australia. The position varies across the jurisdictions of interest to this analysis.

Decision makers are now guided by a number of principles or objectives laid down in legislation but discretionary powers remain available. These discretionary aspects of the process provide for flexibility but may also introduce confusion and uncertainty into planning. Flexibility and discretion in decision making are features in a planning framework where, in the current era, final decisions are made by a Minister. Requiring ministers to justify a departure from the usual process, or the making of a decision that contradicts the aspirations of a community panel or technical (including socio-economic) assessments may contribute towards promoting public confidence in decision-makers.

Ensuring decisions are based on accurate information and analysis
Despite NWI provisions, requirements for technical assessment and their standards vary greatly across jurisdictions. The NWI provides that socio-economic analysis, community input and information from the best available science are pre-requisites for the settling of trade-offs between competing water users. Gathering of base-line data for constructing the water-use profile of the planned area, understanding biophysical, social and economic conditions of the catchments and identifying community issues as they relate to water resource management are first steps in socio-economic analysis. The next step involves generating and evaluating options based on the above and assessing effects of changes arising from water use decisions. The use of these analyses enables decision makers to justify choices made between alternative scenarios.

Many of the jurisdictions do not mandate the use of socio-economic or other analysis. A recent national study of water planning found that if carried out at all, socio- economic assessments were highly variable in quality (Hamstead et al 2008). This study further showed that the community has little confidence that the decision has given due consideration to all relevant factors and

Improving the writing of water plans
Attention should be given to clear and concise writing of water plans. At present, they are often difficult to understand and expressed in an overly complex manner. Courts have referred to difficulties associated with plans which are written in such a complex way that anyone seeking to understand them had an extraordinarily difficult task; moreover that if the literal meaning of some  clauses was adopted, the plan could not operate.

On the other side, plans may contain terms that are broad, imprecise or subjective; and performance indicators may be so general that it is difficult to ascertain whether they have been achieved. The setting of performance indicators is highly relevant to ongoing processes and stakeholders will be discouraged and disinterested if they are not able to assess whether plans are
actually being implemented.

Providing for Indigenous interests in water planning

An area for improvement repeatedly noted is that Indigenous interests are not adequately provided for in planning practice. There is qualified recognition of Indigenous rights to water in the NWI, the provisions of which are attempting to steer a difficult course between the strict legal requirements of native title, and the wider approach that Indigenous social, spiritual and  customary objectives have intrinsic value and should be considered in planning.

While high level policy statements made by the jurisdictions of Northern Australia contain strong commitments to Indigenous engagement, it may appear rhetorical given that there is a shortfall between the policy and its implementation. Indigenous rights to water have also been narrowly construed by case-law and legislation to refer only to domestic (i.e. non-commercial) uses of  water.

Indigenous communities have stated clearly that where planning involves their interests, it ought to respect their timeframes and decision-making processes. In view of the attention given to meeting Indigenous needs to access water and participate in water planning, allowing sufficient time will be a consideration.

It is suggested that a policy on appropriate Indigenous engagement should be drawn up. For example, a water planning cultural assessment policy could identify cultural values, assets and objectives. Consideration needs to be given to ensuring that native title holders can continue to enjoy their rights to fish and hunt for example, in the face of increased water use and allocations.

Identifying and using appropriate dispute resolution processes

Few policy guidelines exist across the jurisdictions for mediation of disputes, or the use of conflict resolution mechanisms in water planning. Given that the ability of parties to take disputes for judicial resolution has been limited, it would be reasonable to see further development of more alternative dispute resolution mechanisms (ADR) in this area. In stark contrast with research, knowledge and practice of ADR in private and commercial disputes, environmental or public dispute resolution is in its early phases in Australia. Existing policies related to the use of conflict resolution mechanisms appear to be underdeveloped.

There are several techniques adopted for conflict management in water resources, for example mediation, facilitation and consensus building. Where consensus building was introduced as a planning mechanism, it was not well designed and implemented. It is apparent that few of the jurisdictions have developed policy that benefits from existing knowledge on designing systematic approaches to consensus building. All jurisdictions will benefit, at the very outset, from designing a planning system for managing conflict rather than ignoring its existence.

The importance of adequate resourcing
Finally, this report notes the general deficiency in resourcing collaborative efforts in water  planning. Though not directly related to the NWI, the two most recent formulations of national policy relating to water, the Howard government’s National Plan for Water Security and the Rudd government’s National Plan for Water, have allocated vast sums of money on capital works for  modernising irrigation systems and other matters directly affecting consumptive use. Although no  definite provisions are as yet available, it appears that despite the NWI identifying water plans as being the key mechanism for delivery of national water reforms, there is limited support of the water planning efforts made in the states, in comparison with the very significant support given to infrastructure building and water buy-back in the Murray-Darling Basin.

In general Australian policy-makers and legislatures have been able to work together for water reform in ways that other countries have not been able to. Water planning is not new; however in the past it adopted a technical approach which did not require collaboration with communities. Assessments of water reform progress tell us that agencies in all jurisdictions have yet to adequately meet the challenge of water planning. Slow progress may partially be explained by the difficulties experienced by agencies’ realignment of priorities, and development of new strategies and skills. In this era of water resource uncertainty, it is essential to gain public confidence in measures designed to deliver on the objectives of water reform. For this reason alone, collaborative water planning needs the full support of governments.

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