Two prominent New South Wales irrigators have been ordered to pay more than $500,000 in fines and legal costs for illegally taking almost 2bn litres of water from the Barwon-Darling River system in 2016.
Cotton farmers Peter and Jane Harris were fined $60,000 in a judgment handed down by the land and environment court on Tuesday for taking 1,896.17 megalitres from the Barwon River, at the head of the Darling River, between 22 and 27 June 2016 in contravention of the conditions of the relevant water licence.
The pair pleaded not guilty, arguing they were not aware of a rule which prohibited them pumping water when the flow of the Darling River at the Bourke gauge was below 4,894ML a day.
They were found guilty by the land and environment court in 2020, unsuccessfully appealed to the NSW court of criminal appeal in 2021 and then unsuccessfully applied for special leave to appeal before the high court. The sentencing decision was handed down this week after a hearing in November.
The offence occurred at Beemery farm near Bourke in north-west NSW, one of 11 properties owned or co-owned by Peter Harris. The court heard that Peter Harris is involved in businesses that hold 40 water access licences covering 112 extraction sites, and relied on his 30 years of experience as an irrigator rather than checking his assumptions against the specifics of this particular licence.
In the sentencing decision, Justice John Robson said the pair were guilty of an offence against s.91G (2) of the NSW Water Management Act for taking water in contravention of a term of the water use approval. But he did not find they did so for financial gain.
“Accepting the defendants’ submissions, and conscious that a large volume of water was extracted unlawfully, I find that there is no evidence that establishes beyond reasonable doubt that either defendant committed the offence for financial gain,” Robson said.
Robson sentenced the pair separately, with Peter Harris fined $40,000 and Jane Harris $20,000. The maximum penalty for each offence at the relevant time was $247,500.
The Harrises were also ordered to pay WaterNSW’s legal costs for the five-year-long case, which amounted to at least $448,260, plus additional costs that are yet to be determined.
They also have to place an ad in key rural newspapers within seven days of the judgment being handed down, publicising the offence.
The court said the market price for water transfers during the 2016-2017 water reporting year was $23.11 a ML, making the approximate value of the water extracted at Beemery Farm $44,000.
But the Environmental Defenders Office (EDO) said that even when including costs, the total financial penalty was “disappointing” and points to shortcomings in the regulation of water resources in NSW.
“It is a disappointing outcome when the theft of water on such a large scale – almost 2bn litres – results in $60,000 in fines,” EDO special counsel Emily Long said.
“A penalty of this size is unlikely to deter large agribusinesses from breaking the law.”
Long questioned the effectiveness of a regulatory regime which results in penalties that could, for a large player, be absorbed as a “cost of doing business”.
“Water is a scarce community resource that should be treasured and shared equitably. At the moment, that is not happening, and communities are suffering,” she said.
In the initial 2020 decision they were also acquitted of taking water from the Barwon River while their meters were not working in 2015, after the court found the prosecutors had failed to establish all the elements of the offence.
The Inland Rivers Network vice-president, Mel Gray, said the fine handed down to the Harrises “isn’t commensurate with the crime”.
A spokesperson for WaterNSW said it “acknowledges the court’s decision without further comment”.
The Harrises, through their lawyer, declined to comment.
In February, an irrigator on the Moree Plains was fined a record $350,00 in the first successful prosecution of a tier 1 water offence by the Natural Resources Access Regulator (NRAR), after they pleaded guilty to knowingly taking water, using an under-recording meter system and constructing an unlawful dam.
