The NSW Upper House Select Committee on Floodplain Harvesting received expert legal advice that the practice of Floodplain Harvesting was never illegal, exposing claims made by a number of members of the Inquiry as misleading and inflammatory.

The Committee, chaired by The Greens Cate Faehrmann MLC, tasked Bret Walker AO SC, former South Australian Murray-Darling Basin Royal Commissioner, to provide advice as to the legality of floodplain harvesting.

His legal advice is clear. It states:

The circumstances that have obtained for generations are, it turns out, circumstances under which the take of water through floodplain harvesting should be considered (not merely “could be considered”) a legal activity.

NSW Minister for Water, Property and Housing Melinda Pavey has praised Mr Walker for his response to questions put to him by the Committee.

Mrs Pavey said the advice puts the impetus squarely back on the shoulders of the NSW Legislative Council to allow the Government to regulate floodplain harvesting.

“Measuring and limiting floodplain harvesting is the only way to ensure more water will stay in the system to support downstream communities and the environment,” Mrs Pavey said.

“Regulating Floodplain harvesting would improve downstream flows for everyone. If the Legislative Council continue to block the regulations, floodplain harvesting will continue unrestrained.

“I am hopeful that Mr Walker’s written advice and testimony Friday will allow us to move past this battle over the question of legality so we can get on with the job of measuring and regulating floodplain harvesting.”

Mr Walker’s written advice also supports the government’s view that licencing floodplain harvesting is the only way to measure and control its growth. He states: 

Unless and until a policy becomes law, it cannot, and therefore will not, have any effect on the legality of floodplain harvesting.

Mrs Pavey said the Upper House continuing to block the Government’s plan to licence and meter floodplain harvesting would not stop it from happening.

Mrs Pavey will appear before the Inquiry on Friday 24 September along with representatives of the Department of Planning, Industry and Environment. The hearing can be viewed live on the NSW Government’s website.