Underground Water Rights Won Back

When the Government busily redesigned the regulations in Qld to enable the Gas Industry, some fundamental rights for farmers quietly fell through the cracks. Some rights were not carried forward, were bulldozed or the can was kicked down the road and left to be interpreted if necessary – all due to the ‘adaptive management’ regime that enables the creation of the gas industry and the government to learn by doing. In relation to farmer’s underground water, rights to drill replacement bores at their own determination are gone, arbitrary baseline assessment are now conducted by gas companies, and it is now left to individual farmers to pursue the gaps in the legislation to protect their rights and operation.
The farmer’s fundamental and basic right to drill a replacement water bore when the current one failed due to standard bore operational issues, was one of these extremely important rights that have been lost. Under the Water Act prior to 2012, if a Farmer’s water bore were to collapse, he was able to drill a replacement bore in the same location, simply classified a ‘replacement bore’. Importantly, the farmer was able to make that decision at any time, a time suitable to his financial and operational needs. This was lost at the stroke of a pen in 2012 when the Water Act was amended for the gas industry.
The amendments to the Water Act 2012 granted the gas companies unlimited take, which now means that a farmer’s bore is subject to predicted impacts from the gas industry activities and such impacts will make the bore subject to make good arrangements. An arbitrary baseline assessment is required to be undertaken by the gas company on the farmer’s water bores in the impacted area: arbitrary because, Gas industry ‘baseline assessment’ becomes the status of the bore that forms the basis for any make good valuation. The implications of this are:
• A baseline assessment on a collapsed bore, before it can be refurbished, will mean the bore is listed as nonoperational and therefore reduces his make good entitlement significantly.
• If the farmer decides to drill a bore next to the old one, once considered a replacement bore, it is now considered a ‘new bore’ and will not be subject to the same make good arrangements as the current bore. Consequently, since 2012 he has lost his right to drill a replacement bore at his convenience.
A simple solution is possible, but it would involve the authorities taking a practical and positive approach to legislation in the interests of the farmer. Something that has not been seen for an exceptionally long time.
Thanks to local Western Downs farmer, Brian Bender, who doggedly pursued this issue, spending many nights narrowing down the information and legislation, consulting with multiple government departments and government bodies, and despite being told by his local member that in trying to recover farmer’s water rights he was splitting hairs, he was able to provide them a solid and reasoned example of the problem and what is needed to resolve it. Brian Bender states: “We have a right to take water out of the Walloon Coal Measures and it needs to be protected – it doesn’t matter if the farmer is currently using the bore or not, he has a right to take water regardless of the gas industry’s bookkeeping.”
Due to his singular efforts on behalf of other farmers in the district, the latest draft UWIR issued October 21, states make good obligations will be transferred from the original water bore to the replacement bore. That is under the new UWIR a replacement bore WILL remain as it was originally and WILL NOT be classified as a ‘new bore.’
The Department of Environment in true bureaucratic style are keen as ever for the farmers to throw more money after bad and seem to think the farmer should redrill the replacement bore, only to have the Department then make case by case determination (no doubt one that suits the gas industry) as to IF the bore will be classified a ‘replacement bore’ or a ‘new bore’.
The issue had always been there, but by doggedly pursuing it to its conclusion, Mr. Bender has ensured a resolution in the interests of farmers, and the issue is no longer being kicked down the road by industry and government and in the too hard basket, because your average farmer does not have the resources to be able to engage in this way.
This is a massive win for the farming community and for farmers who until now were in a no-win situation with the gas companies able to take their water and their bore and not compensate them.
Farmers in the district must make sure that they support this update to the UWIR by making a supportive submission to this draft before 26 November, to ensure their rights in the matter remain, and the change is not edited out in the consultation period by the conflicted Departments and gas industry.