Continued challenges in the policy and legal framework for collaborative water planning

Journal of Hydrology 474 (2012) 84–91

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Continued challenges in the policy and legal framework for collaborative water planning Poh-Ling Tan a,⇑, K.H. Bowmer b, C. Baldwin c a

Griffith Law School, Griffith University, Kessels Road, Nathan, Queensland 4011, Australia Institute for Land, Water and Society and School of Agricultural and Wine Sciences, Locked Bag 588, Charles Sturt University, Wagga Wagga, NSW 2678, Australia c University of Sunshine Coast, Maroochydore DC, Qld 5448, Australia b

a r t i c l e

i n f o

Article history: Available online 16 February 2012 Keywords: Water planning Law and policy Socio-economic analysis Stakeholder engagement Deliberative processes Conflict management

s u m m a r y We consider the implementation of Australian water reform over the last two decades and into the future. Reform was to provide security for consumptive users and adequate rights for the environment. Overallocation, a key threat to both these aims, continues to challenge planners particularly in the Murray–Darling Basin and cannot be addressed without community support. We draw from four major studies to provide insights on how implementation needs to be underpinned by theory. From the perspective of institutional design for collaborative and sustainable water planning, seven major improvements are required: (1) Provision of detailed policy guidelines to support general legal requirements, particularly practical advice for interpreting and applying the precautionary principle. (2) Tools to identify and engage unorganised or neglected community sectors, for example Indigenous peoples and youth. (3) Procedural fairness and transparent decision making, to build confidence in reform; use of independent experts and visual tools to improve the quality of discussion and increase the acceptability of trade-offs. (4) Clearer documentation and language in planning, as more litigation is likely. (5) In accord with international literature, the development of comprehensive policy and legislative framework allowing a systems approach to consensus building, especially when the science is contested. (6) Information on exactly how much water is required and where, by capturing societal choices on environmental assets. (7) Planning for sustainable contraction where cutbacks to water use is required, as an additional strategy to the current emphasis on buying water or building infrastructure. In summary we advocate collaborative water planning processes to engender community confidence in planning. Ó 2012 Elsevier B.V. All rights reserved.

1. Introduction As the pre-eminent statement of Australian water policy, the National Water Initiative sets out the basis on which ‘freshwater resources are to be shared to support resilient and viable communities, healthy freshwater ecosystems and economic development’ (Council of Australian Governments, 2004; National Water Commission, 2011, p. 3). Since water plans provide the mechanism for regional water sharing, planners have the daunting task of resolving tensions inherent in achieving a sustainable, nationally compatible allocation system that maintains social values. In 2004, when state and territory governments committed to the National Water Initiative, public participation was seen as important to the success of water reform. An assessment of the National Water Initiative’s implementation in 2011 maintains that its provisions remain ‘robust and relevant’ but recognises lack of support in

⇑ Corresponding author. Tel.: +61 7 373 54182; fax: +61 7 373 55999. E-mail address: p.tan@griffith.edu.au (P.-L. Tan). 0022-1694/$ - see front matter Ó 2012 Elsevier B.V. All rights reserved. doi:10.1016/j.jhydrol.2012.02.021

the reform agenda. Rural stakeholders, in particular, feel their trust in government processes is eroded and local knowledge ignored (National Water Commission, 2011). These are precisely the reasons why collaborative processes are important, and why participation was considered a key part of the reform process. Our understanding of collaboration, based on the extensive literature on collaborative natural resource management and governance, loosely defines it as non-state stakeholders, those who have either a direct or indirect interest in the issues, and communities working actively together with public agencies to address ‘wicked’ issues that the state cannot successfully manage on its own (Tan et al., this issue). By this definition, which differs from that adopted by some such as Ansell and Gash (2007), collaboration can be present even though participants are not the final decision-makers of a plan or policy. Although collaboration is a time-consuming and expensive exercise, establishing a working consensus early on smooths out the potholes in the path of implementation (Ansell and Gash, 2007). Awareness of the starting conditions (for example a history of conflict or cooperation, power asymmetries), management of

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collaborative processes (for example dialogue, shared understanding), facilitative leadership and institutional design are essential for collaboration. Section 2 of this article gives an overview of the drivers of reform, the enormity of the task, shifts in attitudes required and the conflict that has arisen. We then outline in Section 3 the institutional factors that have contributed to the conflict over water planning, and the early measures that were put in place to build consensus. Our research shows that the elements considered crucial for collaboration have not always been available in the Australian water reform process or insufficiently so. In Section 4 we present observations gleaned from our research, noting improvements required primarily in the area of institutional design. Noting that Australia is considered at the forefront of water governance reform (Organisation for Economic Cooperation Development, 2011), this article highlights the continuing challenges for collaborative water planning and presents lessons for other countries. 1.1. Methodology The data on which this article is based was gathered through two predominant means. Firstly we carried out a desk-top analysis of published material and reviewed Australian water planning legislation and policy across the jurisdictions. In doing so we focused on the study areas in which we worked, that is Queensland, Northern Territory, South Australia, while drawing on relevant examples from New South Wales and Western Australia for a wider coverage. Secondly we base our observations on studies that were carried out using a participatory action research methodology (Mackenzie et al., this issue). Drawing upon the results of two major projects in water planning, the Collaborative Water Planning Project in Northern Australia, and the National Water Planning Tools project (WPT), we assess reform measures against the theoretical framework of collaboration. Empirical observations were compared with relevant literature, and further tested in a national workshop with 20 water planners from the above named jurisdictions and Victoria, with three representatives from federal agencies (Tan and Hoverman, 2010). Much of the data from which we draw observations and conclusions, is presented in earlier articles of this issue.

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2.2. Objectives of reform The Council of Australian Governments (comprised of heads of federal and state/territory governments) based its 1994 Water Reform Framework on two complementary policies. The National Strategy for Ecologically Sustainable Development committed to consideration of the precautionary principle and intergenerational equity (Council of Australian Governments, 1992), and the competition principles of the 1993 National Competition Policy aimed to promote microeconomic reform (Council of Australian Governments, 1994). The objectives were to establish an efficient and sustainable water industry with water pricing based on full cost recovery; clear water entitlements including development of a volume-based water property right; the introduction of trading to move water to its highest value; and integration of surface and ground water licensing and management to avoid over-extraction of ground water as surface water availability became restricted. Implementing the Water Reform Framework was slow, and its principles were refreshed in 2004 in the National Water Initiative which aims for a nationally-compatible market, regulatory and planning-based system based on entitlements that are exclusive, tradeable (where relevant), enforceable, and defined separately from land as a perpetual share of a specified water resource. Governments acknowledged in the National Water Initiative that achievement of the central objectives depends on transparent, statutory-based water planning which provides for environmental and other public benefit outcomes and defines water management arrangements. The National Water Initiative further recognised that ‘overallocation’ needed to be addressed as decades of development had proceeded unchecked. Although there was no legal requirement to compensate irrigators (Gardner, 1999; Tan, 1999), it was considered economically, socially and politically unacceptable to ‘clawback’ more than a marginal amount of water without some form of assistance. Reduction of allocation without compensation paid to irrigators has been a main contributor to conflict, but its roots lie in significant institutional issues.

3. Institutional issues identified in early water planning processes

2. Legal and policy water reform

3.1. Lessons from early planning

2.1. Context and drivers for water reform

Twenty years ago, Handmer et al.’s (1991) analysis of water management in Australia identified several institutional issues which contributed to conflict, including:

Australia’s highly variable climate combined with high levels of extraction of water for consumptive use, began to create major conflicts during the early 1990s. National policy was, and is still closely related to water issues in the Murray–Darling Basin where a massive toxic blue-green algal bloom in the Darling River achieved notoriety (Jones, 1994). An ‘audit’ into management practices in the Murray–Darling Basin found that licensing and allocation systems limited diversion only during drought periods, and confirmed increasing levels of diversion and consequent decline in water health (Murray–Darling Basin Ministerial Council, 1995). In the Murray–Darling Basin more than twice the annual flow is held in storage and about 75% of the mean annual flow is diverted mostly for irrigation. With excessive water licences given out by state agencies, achieving recovery of water for the environment creates extreme difficulties for water policy and planning (Chartres and Williams, 2006). With the onset of drought, the environment began to suffer badly, as illustrated by the problems in South Australia (Mooney and Tan, this issue). Governments realised that substantial quantities of water would be needed to redress the balance and maintain the ecological processes of river and estuarine systems.

 planning treated as a technical process rather than a social process;  inadequate skills for dealing with socio-political issues as traditionally, water management involved those from engineering or science backgrounds;  poor community consultation particularly in relation to mediation and negotiation;  use of language and rationality inappropriate to lay persons’ understanding;  failure of agencies to recognise time requirements of community participation and temptation for fast-track planning;  misinformation and inadequate provision of general resource information; and  lack of credibility through past action or inaction. This analysis informed National Water Initiative provisions, which also incorporated lessons from early planning measures in New South Wales (NSW) and other States. Catchment-based River Management Committees were set up in NSW in 1997, with

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separate committees for the unregulated river, the regulated river and groundwater. Misunderstanding of committees’ roles in decision-making and other water planning issues, mainly regarding reduction in allocation, led to 13 court challenges (Tan, 2008). This initial water planning was conducted under tight deadlines in which committees were directed by the relevant Minister to reach consensus on accepting or improving dam release rules for restoring some of the natural variability in flow patterns while also achieving a reduction in the long-term average consumptive diversion, initially set at 10% in most river valleys (Tan, 2003). While irrigators believed this was a major impost on their right to water, environmentalists argued for a bigger reduction. Eventually agreement was reached on a significant trade-off, i.e., a return of water to the environment in exchange for security of access by irrigators and other consumptive users of water through a statutory water sharing plans that provided for a range of environmental benefits, set in place for a decade (Bowmer, 2003). Overallocation was the crucial planning issue identified under the National Water Initiative, 2004. Future decision-making needed to ‘optimise’ economic, social and environmental outcomes through transparent, statutory water planning which targets amongst other things, ‘the return of all currently overallocated or overused systems to environmentally-sustainable levels of extraction’ and addresses future adjustment issues that may impact on water users and communities (NWI clause 23). 3.2. Assessments of water reform Assessments of the progress of water reform carried out by the National Water Commission and, before that, by the Productivity Commission (Tisdell et al., 2002), report that agencies in all jurisdictions have yet to adequately meet the challenge of water planning (National Water Commission, 2009, 2011). Water plans have not met National Water Initiative standards of sustainability and overallocation remains a pressing concern. Matters of process are a concern identified by the National Water Commission and others (Gardner and Bowmer, 2007; Hamstead et al., 2008), particularly, the engagement of Indigenous people in planning and the transparency of decisions. Further, although collaboration underpins the water planning framework, policy development and supporting legal provisions are underdeveloped. Public involvement should include a range of measures such as forums for dialogue and searching for and rationally evaluating options (Cullen, 2006). However, we find that techniques used have been fairly traditional, for example facilitated community meetings or community panels which may or may not be representative of sectoral interests are often used, even though a wide range of other possible methods are available (Hamstead et al., 2008; Tan, 2008; Tan et al., 2010). Over two decades ago, Sewell et al. (1985, p. 245) observed regarding public involvement techniques that ‘typically a planning agency will focus on one or two, often the quickest and least expensive’. Based on our recent research experience, we find Sewell’s comments largely still apply, and focus on seven major contemporary areas to improve institutional design for collaborative water planning. 4. Areas for improvement 4.1. Policy and legislation for sustainability and collaboration Sustainable management is required by the National Water Initiative and is central to policies and legislation put in place in all States and by the recent Water Act 2007 (Commonwealth). Plans are made only when a water resource reaches a high level of use,

and includes state level plans (New South Wales and South Australia), and regional or catchment based plans (all jurisdictions) with only Western Australia allowing for local management plans (Gardner et al., 2009). It is critical that planners understand statutory obligations and are able to explain the objectives of planning to decision-makers and others (Tan et al., 2010). It has been observed that legislative provisions setting out general principles will only be implemented if accompanied by specific policy directions. For instance, finding that sustainability is poorly implemented in water planning, Hamstead et al. (2008, p. 66) suggests that ‘development of guidelines for the practical and transparent application of the principles of [ecologically sustainable development] particularly the precautionary principle in water planning is needed’. National Water Initiative Policy Guidelines for Water Planning and Management currently exist in draft form but are not yet widely available. From our case studies, one particular threat to sustainability stands out: the poorly developed policy and legislation and lack of transparency regarding water impacts by the Coal Seam Gas (CSG) industry in the Condamine area (Tan et al., this issue). In spite of amendments to Queensland legislation in 2010 and 2011 in response to community pressure, rural stakeholders and environmentalists continue to protest. They are not assured that groundwater is being used by the Coal Seam Gas industry within sustainable limits, nor that the precautionary principle is being applied, nor that distributional equity is considered as farmers’ water allocations are reduced while the Coal Seam Gas industry causes large volume of water to be extracted. This has broader application beyond Queensland’s borders. The Coal Seam Gas industry is proliferating in other states and extracts water from the Great Artesian Basin, an already fully allocated system, shared among state jurisdictions. Extraction of water for Coal Seam Gas is often not well integrated with state water planning or management and the risks and potential long term consequences of poor management are severe (National Water Commission, 2010). The National Water Commission has proposed a series of principles to be applied by states for managing Coal Seam Gas and water and is developing tools and guidelines to account for potential local and cumulative effects of mining on groundwater resources. In addition, a Senate Standing Committee on Rural Affairs & Transport on Coal Seam Gas (2011, p. vii) recommended a moratorium on further Coal Seam Gas projects in the Murray–Darling areas that overlay the Great Artesian Basin given the degree of uncertainty of the long term consequences. We recommend that national policy guidelines endorse principles of collaborative planning as identified in literature and practice, noting that measures need to be adaptable or tailored to the local conditions. In addition, guidelines should provide practical advice for interpreting and applying the precautionary principle. We support consistent regulatory provisions for ensuring application of Ecologically Sustainable Development principles to areas of national and multi-jurisdictional interest, such as the Great Artesian Basin. 4.2. Improving stakeholder and community engagement Planners experience first-hand the tensions in engaging the community in trying to achieve sustainable management. They recognise that at policy and practical levels, elected governments, rather than communities, need to take responsibility for difficult decisions. As noted by Gentle and Olszak (2007), local stakeholders find it difficult to reach consensus on decisions involving significant cuts in entitlements or allocations to their friends and neighbours. Compounding the tension, the level of risk to the security of resources along with uncertain data might tempt government to adopt a top-down instead of a collaborative approach. ‘Some one

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has to take the hard decisions . . . this is too much to expect of communities’ (Tan and Hoverman, 2010, p.37). Resolving the tensions means that in collaborative processes planners ‘. . . do not just present the community with a blank sheet. [They] need to be clear about the ground rules for how much input the community has into the plan’ (Tan and Hoverman, 2010, p. 37). Planners also agree that should water be overallocated, then a sustainable limit may be applied by decision makers, but community engagement remains imperative. Our research raised areas where improvement for engagement is still needed. Firstly, Indigenous people do not view themselves as mere stakeholders, and specialised engagement needs to occur to accommodate their needs and interests (Hoverman and Ayre, this issue; Jackson et al., this issue). Secondly, little attempt is put into ensuring active involvement by the general community, because the limitations on usual consultation processes target organised stakeholders. Yet many techniques are available for ensuring that the general community is given a voice in specific circumstances (Mooney and Tan, this issue). Thirdly, deliberative processes, where opposing views can be heard and discussed in a neutral setting, are necessary if the intention is to resolve contentious issues (Mooney and Tan, this issue; Baldwin, 2008). Thirdly, identifying and including all relevant stakeholders early in a skilfully led process, an essential step in best practice consultation (Sarkissian et al., 2003), is still to be successfully and consistently carried out. In the Howard East and Tiwi Islands studies stakeholders were identified and engaged prior to the start of formal planning processes. This provided time for increased awareness raising and building of rapport and trust without pressures of meeting statutory deadlines or immediately dealing with controversial decisions. In contrast, difficulties arise when key stakeholders are excluded either inadvertently or intentionally – their knowledge or data is not able to be included in deliberation and without the appropriate parties at the table, progress cannot be made towards resolving conflicts. In the Condamine study the potential impacts from Coal Seam Gas mining were not substantially addressed in spite of the community reference panel requesting relevant data and participation of the industry. This issue has remained unresolved well beyond the term of our involvement in the water planning process. Fourthly, the purpose of engagement needs to be clear and relevant to the stakeholders (International Association for Public Participation, 2003; Twyford et al., 2006). When the purpose is solely to give information to stakeholders and the general community, groups are reluctant to contribute substantially to the process. Widely accepted definitions of engagement suggest that the purpose of engagement is for stakeholders to ‘influence’ the making of better decisions (International Association for Public Participation, 2003; Sidaway, 2005) – in reality why else would stakeholders spend time and effort engaged in a process? Yet this is not commonly recognised in government policy. Finally, sufficient time and skill is needed for genuine face-toface dialogue, to hear from all interests, develop a shared understanding, explore common ground, and rationally discuss and consider trade-offs (Ansell and Gash, 2007; Baldwin, 2008; Baldwin and Twyford, 2007). In all cases where we engaged the Indigenous community, we found that it was essential to spend time in the field discussing matters of interest to them. Water planners usually lack the time and often the skills to foster deliberation. In the Condamine we put effort into gaining the views of local Indigenous people and the younger generation, whose voices are generally not heard. In the River Murray case study we developed a framework to engage with local Indigenous groups to discuss how to recognise and capture cultural water values and used multicriteria analysis to guide deliberations with a cross-section of stakeholders.

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4.3. Transparency and procedural fairness has not yet been achieved Contemporary literature sees regulation as a form of public communication that opens the ‘black box’ of government actions and decisions (Morgan and Yeung, 2007). Given the previously discretionary approach, current policy reform emphasises transparency in decision making – National Water Initiative provisions require openness and transparency in the identification of environmental and public benefit considerations, transparency in decision making, and improving certainty and building confidence in reform processes (NWI paragraphs 25(3) and 93). The imposition of a duty on the decision maker to consider a list of matters is a common feature of environmental and natural resource legislation (Bates, 2010; Fisher, 2003). For instance, in Queensland the list extends to 17 matters (Water Act 2000 (Qld) section 47), without any guidance as to how the Minister as decision maker is to weigh the matters. It is unclear how the Minister is to resolve tensions which may result from having (1) advice from a community reference panel which is unclear or may be internally conflicting; or (2) may contradict the technical assessments; or (3) which may further be complicated by the possible effects of the draft plan on water not covered by the plan; and (4) may include matters on which a large number of public submissions have been made. Other legal provisions such as a public government response to submissions provide an element of transparency about the Minister’s own decision, but need to be supported by policies to provide for better public involvement in assessing options, and the use of decision support systems (Bowmer et al., 2007; Hamstead et al., 2008). Where trade-offs are required, use of deliberative tools by planners can clearly communicate community views to a decision maker, who then is required to consider them, thus supporting transparency of any trade-off decisions.1 Our research illustrates how transparent and deliberative processes can be achieved. In most planning processes, the problemsolving phase is the most challenging and involves investigating the implications of a range of options and their acceptability to the community. Identifying community attitudes and values is a crucial part of understanding the trade-off process. Syme et al. (1999) and Syme and Nancarrow (2008) have identified that both procedural and distributional fairness are critical elements in the acceptability of trade-offs. Our results in the Condamine support these findings. In this case, the community reference panel sought a cutback in groundwater extraction to be applied equally across all sectors, including urban. The panel and the wider community rejected several options to vary the reduction according to whether the allocation was used, whether it was used efficiently, and other permutations of use factors. Experience in the Condamine also illustrated that the equitable application of principles and processes across the range of users (including Coal Seam Gas) needs to be visible (Tan et al., this issue). We find that policy makers have yet to recognise that the quality of discussion affects the acceptability of a trade-off discussion, even if no consensus is reached in a forum. In our South Australian study we find that absolute consensus need not be reached in order for a recommendation to be acceptable to a group that broadly represents the community (Mooney and Tan, this issue). When presented with a complex problem that required trade-offs, we find the use of independent experts, visual tools that can

1 See Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165 which establishes that a duty of procedural fairness relates to the exercise of statutory power, especially where it affects the interests of individuals. Whether the duty arises in a specific legal sense depends on the legislation and the context in question.

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contemporaneously capture and illustrate the conversation improves acceptance of the results of a discussion. In addition, policy measures to promote transparency and procedural fairness that should be adopted are: an overview report on the issues to be addressed in the proposed draft plan; public submissions at this pre-draft phase to allow for earlier issue identification; and early workshops to inform the community what to expect from the engagement process. In addition to the policy measures outlined above, legislative provisions to support transparency in decision-making should include:  a decision maker is to act according to clearly stated policy principles;  a duty for the decision maker to consider a list of matters;  a process for public participation early in the process and including public submissions;  review by independent technical panels released publicly;  reporting requirements as to how the decision maker has considered the submissions; and  public availability of information and reports (Tan, 2008). 4.4. Clearer documentation and language is required As water becomes scarce, decisions will be more highly contested and litigation is more likely. One such legal challenge occurred with the Water Sharing Plan for Lower Murrumbidgee aquifers pursuant to the Water Management Act 2000 (NSW). Chief Judge McClellan, NSW Land and Environment Court, had difficulties with understanding the Plan’s formula for reduction in groundwater use. He said: There is no disagreement between the parties as to the intended effect of the Plan, although I have adverted to the difficulty in understanding its complex provisions. It is regrettable that a Plan intended to control a farmer’s access to water has been expressed in a manner so complex that anyone seeking to understand it is given an extraordinarily difficult task. I very much doubt whether most people affected by the plan could ever understand it. As will emerge, an already complex document is made more difficult by the fact that if the literal meaning of some clauses is adopted, the plan cannot operate.2 Recent challenges over water occurred in relation to Commonwealth-State arrangements in which the former gave financial assistance to the States for implementing regulatory measures that included reducing the amount of groundwater available to irrigators in NSW. The High Court, Australia’s final arbiter of legal questioning, ruled on complex questions of law not directly relevant here.3 However documentation of the arrangement was extremely complex, and planners recognise that catchment-based knowledge is lost when plans are written up in ‘legal speak’. Both for community confidence and for defending legal challenges, clearer language is needed. A senior water planner refers to this as a ‘wake-up’ call to . . .document how, why and based on what evidence decisions are made . . . consider the [High Court] decisions as setting a precedent for good quality data and good quality processes and documentation. The take-home message is to document assumptions which underpin trade-offs (Tan and Hoverman, 2010, p. 45).

2 Murrumbidgee Groundwater Preservation Association Inc. v Minister for Natural Resources (2004) NSWLEC 122 (at para 135) affirmed on appeal (2005) NSWCA 10. 3 ICM Agriculture Pty Ltd v The Commonwealth (2009) HCA 51, (2009) 240 CLR 140; Arnold v Ministering the Water Management Act [2010] HCA 3, (2010) 240 CLR 242.

One way of overcoming the technical jargon of water plans would be to attach an Explanatory Guide such as that which accompanied the South Australian River Murray Water Allocation Plan 2002. The need for the Guide became clear after extensive consultation with the community while the Plan was in draft stage. The Guide assists users of the plan (both licence holders and administrators) to understand the principles contained in the plan and the rationale that supported those principles and polices. By reducing ambiguity, the Guide allows more transparent and consistent decisions, especially important for licensing and permitting. Since the River Murray Plan was released with a Guide, many other water plans in South Australia have added one, although it is not a statutory requirement (pers. comm. Bianca Lewis, 2011). Plans often contain terms that are broad, imprecise or subjective. ‘Outcomes’ stated in plans frequently rely on generic objectives for environmental and resource security: they are not measurable, and seldom incorporate the socio-economic context or climatic change. Likewise, performance indicators, even if present, may be so generalised that it is difficult to ascertain whether the indicators have been achieved. For example it is almost impossible to understand agency reporting on environmental flow data without expert hydrological information and knowledge (Coffey, 2001; Gardner and Bowmer, 2007). We suggest that accountability may be improved by using a logic frame that identifies at least one strategy to deliver each planning outcome, with associated specific, measurable performance indicators. A full statement of how the environmental and resource objectives are intended to be met should be made available at the same time as a final plan, and all technical reports should remain available on government websites. 4.5. Conflict resolution and consensus building needs to be systematically addressed Conflict often occurs where there is strong competition over the resource. International literature suggests that cooperation over water is more common than conflict, particularly for trans-boundary water resources. Where the stakes are high, there are more reasons to find creative solutions, however the institutional setting and legislation needs to be enabling (Priscoli and Wolf, 2009). One traditional means of resolving conflict has been through judicial decisions. However legislation in most jurisdictions keep litigation over water planning out of the court’s jurisdiction in relation to substantive matters i.e. on their merits, making available only judicial review of the Minister’s decision. In judicial review processes, courts apply administrative law principles on highly technical and complex issues. There are several reasons why limiting access to the Courts is justified. Any legal challenge that succeeds in overturning a finalised plan will mean the agency will have to go back to the drawing board, delaying implementation of measures, with significant implications for agency costs, entitlement security, and potential environmental vulnerability. Besides, planning should involve the conciliation of competing interests and it deals with complex scientific information so courts are often not the appropriate forum (Adler, 2002). Since water plans are statutory instruments, an un-elected appeal body has little legitimacy to assess a decision on the basis for plan adoption, except for judicial review on grounds of process. Given that water plans cannot be successfully challenged in courts on their merits and can only be changed by legislative means, a concerted effort should be made to build consensus and manage conflict in the early planning stages. Currently, in the event of conflict between stakeholders, a decision is frequently made by the Minister on the basis of departmental briefings, public submissions, and interest-group lobbying. Techniques to build consensus have usually been limited to independent facilitation and use of advisory committees where community members can

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establish a longer-term relationship with the topic and become familiar with each other’s needs. Despite the international literature and practice (McCreary et al., 2001; Sidaway, 2005; Susskind et al., 1999), no Australian jurisdiction has developed comprehensive policy or legislation based on a systems approach to consensus building, especially required when the science is contested. Ways of enabling an institutional and cultural setting to find creative solutions can draw on literature on consensus building (Susskind et al., 1999) and collaborative governance (Ansell and Gash, 2007). Contributors to success include: those who are affected and have an interest should be included (inclusiveness); needs and interests of all parties should be acknowledged or accepted – this may require a process for equalising power such as through neutral facilitation; participants should have a role in designing how to participate to allow adequate deliberation if desired; and they should have equal access to information that allows effective participation. For example, policy and legislation could specify the need for neutral facilitation and joint fact-finding, to reduce areas of conflict and create greater transparency among parties. The theory and practice of conflict resolution finds that tradeoffs work best if the scope of planning is broadly defined. Put simply, options on how to divide a pie increase if a pie is made bigger (Fisher et al., 1991; Susskind et al., 1999). If the scope of planning is expanded to consider a broader range of options and scenarios, the efficacy and acceptability of plans will improve. Thus, water planning that is integrated with land use and catchment planning and cultural heritage legislation could help address cuts to entitlements which effectively make agricultural activity unviable. Some local governments have already been successful in attracting Commonwealth funding to plan for a future with less water. Enhanced face-to-face deliberation, such as in multi-criteria analysis, ensures that stakeholders are involved in creating and assessing options, a deficiency in many water planning processes to date. A change in institutional culture is required to embed new principles, skills and techniques into water planning processes. The stakeholder and context analyses of each case study explored who should be involved in the water planning process and how, their issues, and the kind of information that would be useful to them or that they could contribute to water planning (Hoverman and Ayre, this issue; Jackson et al., this issue; Mooney and Tan, this issue). This knowledge of stakeholder values is key to the successful adoption of deliberative tools. 4.6. Clarifying environmental goals and requirements Principles of Ecologically Sustainable Development and the protection of threatened species are central to water policy and management in Australia. Yet the biophysical decline of many of our aquatic ecosystems, river and estuarine health is described in numerous audits and reports (Davies et al., 2010; National Land and Water Resources Audit, 2002; National Water Commission, 2007; Schofield, 2010). Also it is generally agreed that it is better and less expensive to maintain river health than to restore it from a degraded condition (Rutherford et al., 2000). The social imperative to protect the condition of rivers and wetlands has been demonstrated by surveys (NSW Department of Environment and Climate Change, 2010); choice modelling (Bennett et al., 2008); and studies of the growing importance of aesthetic, spiritual and recreational values (Dyack et al., 2007). Despite general agreement that environmental water is needed, exactly how much water is required and where depends on societal choices on environmental assets. These questions are neither clearly asked nor addressed. The Commonwealth government has invested in six icon sites in the Living Murray initiative (Murray– Darling Basin Authority, 2010a) and 18 key sites are proposed in

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environmental watering plans for the Murray–Darling Basin (Murray–Darling Basin Authority, 2010b). These have been selected with very little public input. Also it is recognised that watering of icon sites alone may not be sufficient to maintain aquatic ecosystem function and that, since a return to pre-development conditions cannot be achieved, the emphasis should be on maintaining the integrity of the aquatic ecosystem processes (Hillman, 2008; NSW Natural Resources Commission, 2010). The recent Draft Basin Plan (Murray–Darling Basin Authority, 2011) proposes that the current licensed diversion be reduced by 2750 GL to 10,873 GL per year, or 20.2% of the current long term average diversion, with substantial social and economic impact on some regional communities. Both irrigators and environmentalists are unhappy with the new proposed sustainable diversion limit, so key questions are: how much water is required for riverine environmental sustainability; what processes should be used to determine environmental watering priorities; which communities should bear the brunt of the reductions; and how can impacts on these communities be mitigated? Environmental goals generally assume a redistribution of environmental water from consumptive users, but the situation is more complex. For example Hamstead (2007) notes ‘a common misconception is that water is used either for environmental or productive consumptive purposes when both can occur’. Similarly, Syme and Nancarrow (2008) define ‘Water Benefits’ as the way in which water promotes well-being in both utilitarian and other ways, acknowledging that the same volume of water can deliver multiple benefits as it moves through the catchment. Examples of useful developments in this direction include the Sustainable Yields Project (Commonwealth Scientific and Industrial Research Organisation, 2007), general guidance on the Ecological Limits of Hydrological Alteration (Le Roy et al., 2010), a community of practice for information sharing by environmental managers (Australian Water Association, n.d.), and the recent establishment of a cluster of aquatic ecology researchers (Commonwealth Scientific and Industrial Research Organisation, n.d.) that will assess the water requirements of the environmental assets of the Murray–Darling Basin and monitor changing ecosystem health. However, these biophysical science approaches are not designed to support inclusiveness in planning at the local level, although the Council of Australian Governments water reform process requires it. Local involvement in planning remains a challenge (Cullen, 2006; National Water Commission, 2009; Wilson, 2011). Advantages of community involvement in managing environmental water are that people can interrogate and enrich expert knowledge, set priorities for optimum use of limited volumes of water, find local innovative solutions, and agree on measurements of environmental benefit. Visual tools developed in our trials fostered learning and demonstrated the vital link between groundwater flows and surface water (Baldwin et al., this issue) and stakeholder values (Mooney et al., this issue). The needs of Indigenous communities provide special challenges, but physical and visual means such as the 3-D groundwater model and photos assisted in eliciting cultural aspects of water (Jackson et al., this issue). 4.7. Planning for sustainable contraction The mechanism for achievement of river health and ecological sustainability is contentious. Currently the emphasis is on water buyback or investment in infrastructure for water savings that is shared with the environment. Substantial funds of AUD 12.9 billion were set aside through the Water for the Future Program and promised by bipartisan agreement to achieve the Sustainable Diversion Limit in the Murray–Darling Basin Plan (Murray–Darling Basin Authority, 2011). Less attention has been given to how the

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management of this new water will be integrated with existing water sharing plan agreements and with changes in land use that intercepts water and affects run-off, such as afforestation and farm dams (Sinclair Knight Merz et al., 2010) although recommendations exist for the alignment for water and catchment planning in New South Wales (Hamstead, 2010). Where compliance with Sustainable Diversion Limits means substantial cuts, allowing untrammeled water markets may place a heavy social cost on third parties, and building infrastructure needs rigorous economic analysis (Productivity Commission, 2010). Sloan, a respected economist, questions the integrity of the efforts saying that Commonwealth’s infrastructure program is up to five times as expensive as the equivalent figure for buybacks. Moreoever, the scope for infrastructure spending varies significantly across the basin, disadvantaging those irrigation areas where upgrades, often undertaken privately, have already occurred (Sloan, 2010). In Victoria, a state where regional irrigation systems have been re-designed to find efficiencies for piping water to Melbourne, the state’s capital, infrastructure building has been controversial (Victorian Department of Sustainability and Environment et al., 2007). For example, locals are critical because in some instances regulators were installed where irrigation channels were soon to be shut down (Wade, 2011). This controversy is likely to roll out across the Basin unless integrated planning to combine buybacks for water, infrastructure building and land-use planning is put in place. For example, our social impact assessment of part of the Murraylands, South Australia, assesses that the risk of decline of small, highly agriculture-dependent communities is likely to be intensified by changes brought about through drought, low flows and restricted water allocation. Sustainable contraction, a concept already discussed in post-industrial cities like Detroit and Flint, Michigan, United States, will allow a planned process (Carreiro and Zipperer, 2007). In climate change forums, a larger scale systemic process is advocated (Selby, 2007). Again, as the Detroit example shows, organised contraction is a painful, complex process, but a first step towards tackling the difficulties in an integrated manner needs to be taken by planners, policy makers and politicians.

5. Conclusion Aspirations of water planning have become increasingly targeted and sophisticated through almost 20 years of water reform. Many countries have looked to Australia to provide exemplars of institutional frameworks for water management and planning. Projects such as the Collaborative Water Planning and National Water Planning Tools Projects contribute by clarifying, developing, trialling and refining processes. Our research has raised seven areas that, if addressed, would significantly improve the framework for water planning. With rapidly developing science, large probabilities around climate change and variability and new market-based approaches, overallocation has become increasingly apparent in three of our four study areas. Consumptive water users are often critical of the environmental benefit from environmental water allocation even though they may agree on the need for ecologically sustainable development. As noted earlier, water benefits accounting is a new approach that has not yet been fully developed. We propose that an adaptive management framework, as detailed in the first article of this issue, should underpin collaborative water planning. This approach can balance ecological and resource security with continuous improvement in accord with current stakeholder views that call for a more integrated and adaptive approach to environmental water management. Our research suggests that there is

much to gain from implementing lessons from the collaboration literature. Where overallocation of water needs addressing, an adaptive approach to sustainable contraction should be a priority for future research collaboration with industry.

Acknowledgements This work draws from two projects. The Collaborative Water Planning Project (2007–2009) was funded through the Tropical Rivers and Coastal Knowledge (TRaCK) research hub which brings together leading tropical river researchers and managers from a group of universities and institutions. TRaCK received major funding for its research through the Australian Government’s Commonwealth Environment Research Facilities initiative; the Australian Government’s Raising National Water Standards Programme; Land and Water Australia and the Queensland Government’s Smart State Innovation Fund. The Water Planning Tools project (2008–2010) was funded by the National Water Commission through its Raising National Water Standards Program which supports the implementation of the National Water Initiative. Over the 4 year period of the two projects, many Indigenous groups, community members, stakeholders and water planners participated in the research and we thank them for their patience, ideas, and generous contribution of their time. Legislation Water Act 2000 (Queensland). Water Act 2007 (Commonwealth). Water Management Act 2000 (New South Wales).

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