A sea of yellow and green lines the back roads of the Riverina district, signalling the beginnings of a good year for farmers in the area. But the decent season of rain indicated by these colours masks a more serious issue that these farmers are facing, of which the consequences are jeopardising the future of farmers and their communities. This includes the livelihood of local farmer Chris Brooks.

“It’s beggars belief that it doesn’t get more attention. It is the greatest crime that I have ever seen in this country in my lifetime, and it needs exposing for what is it,” he tells upstart.

What Brooks is referring to is the water policies that have been implemented as a part of the Murray Darling Basin Plan (MDBP) , which have left many farmers frustrated as they are denied access to water that they can see flowing down the Murray River.

The Murray Darling Basin is a system of interconnected rivers and lakes situated in Australia’s south east covering 14 percent of the country’s total land area. It starts with the Darling River in southern Queensland before flowing into the Murray and reaching the sea south-east of Adelaide. Known as Australia’s food bowl, the climate here is relatively dry compared to other parts of the country, which is why farmers in this area rely on irrigation from the Murray and Darling Rivers to grow produce.

Inaugurated in 2012 as a response to drought and other potential impacts of climate change, the Murray Darling Basin Authority (MDBA) created a plan to “bring the Basin back to a healthier and sustainable level, while continuing to support farming and other industries for the benefit of the Australian community”. They decided to do this by recovering 2750 gigalitres of water from irrigated agriculture by limiting access and reallocating this water to the environment.

But according to many, the plan in practice has been nothing short of a disaster for irrigators, communities and the environment.

Following a Four Corners report of allegations of water theft by NSW cotton farmers back in 2017, a $5 million royal commission into the MDBP was put in place, and it found that the original plan ignored potentially “catastrophic” risks associated with climate change.

Dr Daniel Connell from the Crawford School of Public Policy at the Australian National University has written extensively about the Murray Darling Basin. He told upstart he believes the issue of climate change was a very fraught subject at the time the plan was being drawn up, and was almost ignored.

“There was a policy decision not to sort of go beyond having a framework that accounted for the sort of variability that existed in the past.”

Instead, he says that there was a decision made not to emphasise the predicted effects of climate change, essentially rendering the plan now ineffective.

“There was a lot of people who were very critical of that. A lot of people argued that the policies should be much more conservative in terms of saying what water was going to be available, because the predicted impacts of climate change were reduced rainfall, and increasingly variable climate.”

Farmers along the Murray are reliant on the water from the river and their water allocations to be able to grow summer crops and supplement winter and spring crops when rainfall is below expectations. But, as the MDBP came into fruition, water allocations dropped and prices became exorbitant, and irrigation farmers were put under immense pressure.

The way water allocations work is that farmers first have to own a water entitlement which gives them the right to have water delivered to their properties. Currently, this costs around $1500 – $1700 a megalitre. To put this into perspective, a 600 acre block of land would normally need around 600 megalitres of water delivered. The farmer then has to pay their local irrigation company for this water to be delivered, which is a fixed cost. So, when little to no water is delivered, the farmers still have to bear considerable costs.

Water allocations are a percentage of the water entitlement that can be taken from the river. Currently, in a year when all the dams and rivers are overflowing, with around 24,000 megalitres of water a day (as of August 31) going out of the food bowl down to South Australia, farmers are only allowed to access 30 percent of their water entitlement. Much of this excess water is flowing out to sea, with 89 gates open at the Goolwa Barrages at the Murray Mouth. For context, that 24,000 megalitres of water could be used to grow over 1700 hectares of rice, which would produce around 18 million kilograms, equalling to 90 million serves of rice, just in one day.

For Brooks, once the MDBP came into effect, the pressures of keeping up with these costs without seeing a return for his money became too much, and meant the sale of his family farm.

“I had built up a pretty good little business, it was a productive farm growing winter crop and summer crop and I put plenty of overhead centre pivot irrigators in and had plenty of water,” he says.

“Then the water just disappeared. It just dropped and dropped and dropped, and it had no correlation to the dam level and our allocation, and I started asking some questions.”

These questions lead Brooks to look into the original conditions of the MDBP, and found that the socio-economic study that was conducted by the MDBA back in 2012 was done in the far north of the Basin, which is very different to the Southern Riverina area, in that there is little value adding and no water meters or storages. This means that water in the far north is not measured, therefore farmers there are not charged for water usage as they are in the south, so the plan essentially did not affect them or their communities.

As the chairman of Southern Riverina Irrigators (SRI), a water advocacy lobbying organisation, Brooks and the SRI launched their own investigation into the impacts that the MDBP was having on the Southern Riverina community.

“We did one [socio-economic study] ourselves with a credible and reputable firm called the Australian Institute, and they identified in this region during the drought, a zero percent water allocation had the financial negative impacts of $7 billion and 20 thousand jobs, just in this small region.”

With the facts in writing, and no support from the MDBA or the government, despite negotiation efforts, it was time to take these issues to the next level. For Brooks, that meant court action.

“There were several courses of action, legally, and the option that we chose was to actually charge the Murray Darling Basin with gross negligence with the management of this valuable resource, and we could prove that by them breaching their own rulebook.”

In 2019, nine local irrigation farmers, including Brooks, filed a class action lawsuit against the MDBA.

“We would claim that we, the growers in this southern general security region, we were not delivered 750 gigs [gigalitres] of water in one drought,” Brooks says.

“We can prove beyond doubt that we could produce about $1000 per megalitre, so that’s $150 million for the first year, and they did the same stupid things in the second year. So off the back of your hand, by my calculations, I’m not an accountant or a solicitor, that’s $1.5 billion. Now, that is $1000 per meg [megalitre], per year. Now that’s about fair and reasonable what the farmers lost.”

With the lawsuit currently before the courts, more 1000 farmers have signed up in the hope of some sort of compensation for their loses.

Class actions are one way of approaching large scale lawsuits. They involve a claim being brought before the court where a few lead litigants represent a larger number of people, or class, who are all victims of a similar iniquity. Associate in the class actions team at Slater and Gordon, Caitlin Baker, tells upstart that class actions are a really effective way of bringing a claim to court.

“Essentially without a class action, if you have a group of victims of some kind of wrongdoing, each victim usually would have to, sort of, have the courage to individually issue proceedings in the court. They would have to individually prove all of their specific allegations for the wrongdoing they’ve suffered and give evidence,” she says.

“It really demonstrates a real economy to scale in having a large-scale, complex piece of litigation determined by a sort of test case of a lead plaintiff who can run the thing for everyone involved.”

Often class actions are very complex pieces of litigation, such as in this case, and can go to court several times, over a long period of time before a verdict is reached.

“The best description I’ve heard of this process is, if we’re putting together a jigsaw puzzle…  when we give up our evidence, and they give their defence and then they ask for their subpoenas, they give up little bits of information that you put into the jigsaw puzzle, so it’s a continuous process of more and more information until you can get the photo of them doing the wrong thing that you go and put before the judges to claim, you know, there’s the story,” Brooks says.

One person who has taken the time to piece together the puzzle of the MDBP is independent public policy expert, Scott Hamilton. Co-author of the book, Sold Down the River with Stuart Kells, Hamilton was shocked at what they found once they started looking into the issues surrounding the plan.

“The thing that we sort of found on this journey as [we] talked to irrigators, farmers, traditional owners, water traders and brokers, and politicians and the rest of it, was that no one has actually put all these pieces of the puzzle together to work out what was really going on.”

One of Hamilton’s biggest concerns is with water trading and the market. 

“This was even back 50 years ago or further, that if one farmer had bit of extra water and another farmer had bit less water then they could provide a trade… farmers back in the old days, they used to sort of trade a bit of water for a slab of beer, which was the very first beginnings of water trade,” he tells upstart.

“Over the years, particularly with the idea of privatisation and financialisation of various commodities, the water market became more and more a case of ‘let it rip’, and essentially we unbundled the water market from land so you could trade your water without trading your land … we brought the banks in, in particular, and the hedge funds from overseas, and that’s when things particularly started to go off the rails.”

There are currently two types of water trading in Australia. The first is permanent trade, which is the buying and selling of water entitlements, and can be thought of as a long term investment. Then there is the temporary market, which is the trade of water allocation – a short term investment. Because water rights are not entangled with owning land for irrigation, anyone can trade on the water market. So, you don’t just have the farmer who needs enough water for his crops trying to buy a little more from a neighbour.

“On one side we have high speed trading and complex large scale trades going on, against the farmer who might be sitting there with their laptop. So it’s not a level playing field,” Hamilton says.

At its core, the problems that have stemmed from the MDBP are a political issue, and Connell thinks that how it needs to be approached in the future.

“Our society needs to have a well-informed, high quality, public discussion about how we want to use an increasing pressured resource and that is water in our rivers,” he says.

“So effectively what it comes back to is the importance of having high quality politics.”

For the farmers who await for the results of the class action, a decision is not imminent. But the money is not necessarily all that it important to them.

“The growers in the class action, most of the growers in this region have signed, are not exactly looking for money as compensation. Sure it’d be great because they were robbed and defrauded of their right water entitlement. But they want them to stop doing what they’re doing. It’s having such a drastic impact here,” Brooks says.

“That’s what we’re after, a fair go.”

Article and Photo: Phoebe Doyle is a third-year Bachelor of Media and Communications (Journalism) student at La Trobe University. You can follow her @phoebedoyle_.